New York Special Education Case Law Digest

New York

SPECIAL EDUCATION C A S E L AW D I G E S T Updated September 2025 A Publication of the New York Special Education Task Force

New York Special Education Law Digest for Students, Families, and Advocates UPDATED: SEPTEMBER, 2025

Introduction The mission of the New York State Special Education Task Force (“State Task Force”) is to improve educational access and outcomes for students with disabilities through a collaborative statewide network of stakeholders representing a variety of roles in addressing the special education needs of students in New York State.

The Task Force was originally formed in 2004 as a local, grassroots task force focused on improving the educational outcomes of students with disabilities. Activities of the original task force emphasized training, issue identification and discussion, and networking. Most importantly, the task force purposefully promoted participation and collaboration among all stakeholders, including parents, advocates, attorneys, school personnel, service providers, educators, government representatives, and individuals with disabilities.

Because of the outstanding success of the model and requests for replication in other parts of the State, the executive board of the original task force unanimously agreed to promote the development of task forces in other regions across the State while establishing a statewide special education task force to support, facilitate and represent regional task forces. At the same time, Disability Rights New York (DRNY) was designated the federally-funded Protection and Advocacy System in New York. With substantial resource support from DRNY, the State Task Force was formally established in 2014. Several Regional Affiliate task forces have been established across upstate New York State. For additional information see https://www.nyspecialedtaskforce.org/.

The New York Special Education Case Law Digest provides information for special education stakeholders about cases involving special education laws. Understanding decisions of federal and state judges and New York’s Office of State Review in special education cases is essential to navigating the rights of students with disabilities and the obligations of school districts. This publication is a resource for all stakeholders involved in special education including students, families, school professionals, advocates, attorneys, and others. This Digest provides summaries of cases involving a wide range of special education legal issues. It will be updated with new cases periodically. Most summaries focus on recent administrative and judicial cases in New York, but in some instances, older but important special education cases decided by the U.S. Court of Appeals for the Second Circuit and other jurisdictions are included. Our hope is that through the use of this publication, parents, families, and school districts will collaborate together to protect student rights and improve educational outcomes. i

Suggestions for case summaries, feedback, and questions can be sent to SpecialEd.Digest@drny.org. We want to empower special education stakeholders through knowledge.

Lewis Steele, Esq. Attorney Emeritus Program, Disability Rights New York

_________________ The New York Special Education Case Law Digest work is designed to provide practical and useful information on the subject matter covered. However, it is provided with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. ii

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AMERICANS WITH DISABILITIES ACT (ADA) ............................................................................ 1 Damages ................................................................................................................................................ 22 Eligibility ................................................................................................................................................ 23

APPEALS TO THE STATE REVIEW OFFICER (SRO) ................................................................... 28 Evidence................................................................................................................................................. 28 Procedures ............................................................................................................................................. 30 Scope of Review ..................................................................................................................................... 31

APPEALS OF FEDERAL AND STATE COURTS ........................................................................... 39 Deference – Hearing Officer ................................................................................................................... 39 Deference – Office of Special Education Programs (OSEP) Letters .......................................................... 50 Deference – State Review Officer ........................................................................................................... 52 Scope of Review ..................................................................................................................................... 67 Additional Evidence to Court.................................................................................................................. 76

ATTORNEY FEES ................................................................................................................... 79 ASSIGNED SCHOOL –NOTIFICATION ..................................................................................... 98 BEHAVIOR ......................................................................................................................... 104 Applied Behavior Analysis (ABA) .......................................................................................................... 104 Functional Behavior Assessments (FBA) and/or Behavior Intervention Plan (BIP)................................ 105

BULLYING .......................................................................................................................... 112 CHILD FIND ........................................................................................................................ 124 COMPENSATORY EDUCATION ............................................................................................ 136 CONSENT........................................................................................................................... 160

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COVID-19 .......................................................................................................................... 160 Compensatory Education ..................................................................................................................... 160 Implementation of IEP ......................................................................................................................... 172 Miscellaneous ...................................................................................................................................... 190

COMMITTEE ON SPECIAL EDUCATION (CSE) ....................................................................... 208 Notice .................................................................................................................................................. 208 Parent Participation ............................................................................................................................. 210 Parent Submitted Evaluations and Data ............................................................................................... 225 Required Members .............................................................................................................................. 228 Interpretation Services......................................................................................................................... 238

DECLASSIFICATION & TERMINATION OF SERVICES ............................................................. 239 DISCIPLINE OF STUDENTS .................................................................................................. 240 Expungement ....................................................................................................................................... 240 Interim Alternative Educational Setting (IAES) ..................................................................................... 243 Manifestation Determination .............................................................................................................. 245 Miscellaneous ...................................................................................................................................... 252 Timeout Rooms, Restraints, and Seclusion ........................................................................................... 253

DUE PROCESS IMPARTIAL HEARINGS ................................................................................. 264 Impartial Hearing Officers (IHO) ........................................................................................................... 264 Retrospective Testimony...................................................................................................................... 266 Scope of Review ................................................................................................................................... 273 Sufficiency of Decision ......................................................................................................................... 277 Telephonic Hearings/In-Person Hearings ............................................................................................. 279 Timelines and Time Requirements ....................................................................................................... 280

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ELIGIBILITY FOR SPECIAL EDUCATION SERVICES ................................................................. 281 ............................................................................................................................................................. 281 Classification ........................................................................................................................................ 281 Learning Disabilities ............................................................................................................................. 297 Twice Exceptional/Gifted Students ...................................................................................................... 303

EVALUATION AND REEVALUATION .................................................................................... 308 EXHAUSTION OF ADMINISTRATIVE REMEDIES ................................................................... 321 EXTENDED SCHOOL YEAR................................................................................................... 348 FREE APPROPRIATE PUBLIC EDUCATION (FAPE) ................................................................. 349 Cumulative Procedural Violations ........................................................................................................ 349 Miscellaneous ...................................................................................................................................... 359

INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE) ................................ 360 INDIVIDUALIZED EDUCATION PROGRAM (IEP) ................................................................... 379 Amendment ......................................................................................................................................... 379 Assistive Technology ............................................................................................................................ 380 Goals and Objectives ............................................................................................................................ 383 Development ....................................................................................................................................... 387 Evaluations .......................................................................................................................................... 389 Grouping .............................................................................................................................................. 394 Miscellaneous ...................................................................................................................................... 400 Location ............................................................................................................................................... 401 Needs of Student ................................................................................................................................. 406 Needs of Student: Methodology .......................................................................................................... 415 Parent Counseling and Training............................................................................................................ 420

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Parent Concerns ................................................................................................................................... 421 Placement ............................................................................................................................................ 424 Predetermination................................................................................................................................. 458 Present Levels of Performance ............................................................................................................. 470 Related Services ................................................................................................................................... 471 Starting Date – When Required to be in Effect ..................................................................................... 480 Transition Services ............................................................................................................................... 485 Transportation ..................................................................................................................................... 488 Procedural Violations ........................................................................................................................... 497 Related Services ................................................................................................................................... 499

LEAST RESTRICTIVE ENVIRONMENT (LRE) ........................................................................... 510 MEDIATION ....................................................................................................................... 523 MOOTNESS ....................................................................................................................... 523 PENDENCY PLACEMENT ..................................................................................................... 529 PRIOR WRITTEN NOTICE .................................................................................................... 548 REMEDIES ......................................................................................................................... 548 Compensatory Education ..................................................................................................................... 548 Direct Payment .................................................................................................................................... 555 Injunctive Relief ................................................................................................................................... 565 Prospective Relief ................................................................................................................................ 580 Remand................................................................................................................................................ 583 Services ................................................................................................................................................ 598 Tuition Reimbursement ....................................................................................................................... 600 Equitable Relief .................................................................................................................................... 602

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Enforcement ........................................................................................................................................ 605

SECTION 504 OF THE REHABILITATION ACT OF 1973 ........................................................... 605 Damages .............................................................................................................................................. 605 Eligibility .............................................................................................................................................. 613 Free Appropriate public education (FAPE) under section 504............................................................... 623 Least Restrictive Environment .............................................................................................................. 626 Miscellaneous ...................................................................................................................................... 628 Violations ............................................................................................................................................. 631

SECTION 1983 .................................................................................................................... 641 SECTION 3602-C: DUAL ENROLLMENT ................................................................................ 645 SERVICE ANIMALS ............................................................................................................. 648 STATUTE OF LIMITATIONS ................................................................................................. 650 Tolling .................................................................................................................................................. 650 Miscellaneous ...................................................................................................................................... 658

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS .................................................... 659 Appropriateness of Placement ............................................................................................................. 659 Burden of Proof.................................................................................................................................... 682 Equitable Considerations ..................................................................................................................... 682 Tutoring ............................................................................................................................................... 706 miscellaneous ...................................................................................................................................... 714 Speculation .......................................................................................................................................... 715 Notice of Intent to Remove .................................................................................................................. 721 Related Services ................................................................................................................................... 724

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TABLE OF CASES AMERICANS WITH DISABILITIES ACT (ADA) ............................................................................ 1

T.H. v. The Archdiocese of New York, 23-CV-2154 (JPO), 2025 WL 370150 (S.D.N.Y. Feb. 3, 2025) .........................1 Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024) ........................................................................2 A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024)..................4 A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024)................10 Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) ................15 Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) ........................18 Luna Perez v. Sturgis Pub. Sch., 21-887, 2023 WL 2575928 (S.Ct. Mar. 21, 2023) .................................................18 L.B. v. New York City Dep’t of Educ., 21 CV6626 (VEC), 2023 WL 1779550 (S.D.N.Y. Feb. 6, 2023) .......................19 Barnes v. Gorman, 122 S.Ct. 2097 (2002) ...............................................................................................................20 K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S,D.N.Y. May 26, 2022) ...................22 Damages ................................................................................................................................................ 22 Doherty v. Bice, 2024 WL 2096705, No. 23-1217 (2d Cir. May 10, 2024) ..............................................................22 Eligibility ................................................................................................................................................ 23 Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024) .......................23

APPEALS TO THE STATE REVIEW OFFICER (SRO) ................................................................... 28 Evidence................................................................................................................................................. 28 Application of a Student with a Disability, Appeal No. 23-102 at pp. 18-19 (July 31, 2023) ..................................28 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)............................29 Application of the New York City Department of Education, 20-108 (8/10/20).....................................................30 Procedures ............................................................................................................................................. 30 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) .......................................................................30 Scope of Review ..................................................................................................................................... 31 Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) .............33 Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024)...............................34 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ....................................35 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ......................................................35 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).........................................................36 B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) ...........................37 Application of the Dep’t of Educ., Appeal No 21-184 (Oct. 27, 2021) ....................................................................38 Application of a Student with a Disability, Appeal No. 20-083, (June 26, 2020) ....................................................38 Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) ...........................................39

APPEALS OF FEDERAL AND STATE COURTS ........................................................................... 39 Deference – Hearing Officer ................................................................................................................... 39

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Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ....................................................................39 Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) ..............................................................41 A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) .................................42 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .......................................................44 L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) .....................45 E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 546-47 (S.D.N.Y. 2016) ................................................46 R.E. v. New York City Dept of Educ., 649 F3d 167, 189 (2d 2012) ..........................................................................47 V.A. v. New York City Dept of Educ., 20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y May 10, 2022) .............49 Deference – Office of Special Education Programs (OSEP) Letters .......................................................... 50 L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) .....................50 E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 546-47 (S.D.N.Y. 2016) ................................................51 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) ....................................................................................................52 Deference – State Review Officer ........................................................................................................... 52 Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ....................................................................52 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ......................54 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ......................55 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ......................56 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ......................57 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) .....................58 Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) ..............................................................58 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ..................................60 A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) .................................62 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .......................................................64 R.E. v. New York City Dept of Educ., 649 F3d 167, 189 (2d 2012) ..........................................................................65 V.A. v. New York City Dept of Educ., 20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y May 10, 2022) .............67 Scope of Review ..................................................................................................................................... 67 Cornett v. Banks, 23-CV-06893 (MMG), 2025 WL 712799 (S.D.N.Y. Mar. 5, 2025) ................................................69 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ......................71 Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024) .........................................................72 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ..................73 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ..................74 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ..................75 B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) ...........................75 Additional Evidence to Court.................................................................................................................. 76 Leonarda Bautista v. David C. Banks, 23-cv-11161, 2025 WL 861223 (Mar. 19, 2025) ..........................................76 Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) ........................................77

ATTORNEY FEES ................................................................................................................... 79 H.C. et al v. New York City Dep’t of Educ., 71 F.4th 120 (2d Cir. 2023)....................................................................82 J.S. v. N. Y. State Dep’t of Corr. and Comty Supervision, Docket No. 21-2447, -- 4th –, 2023 WL 4938345 (2d Cir. Aug. 3, 2023) ...........................................................................................................................................................85 K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) ...................89 N.G.B. v. New York City Dept of Educ., 20-cv-6571 (JGK), 2022 WL 800855 (S.D.N.Y Mar.16, 2022) .....................93 S. J. v. New York City Dep’t of Educ., 21-240-cv, 2022 WL 1409578 (2d Cir. May 4, 2022) ....................................95 H.C. v. New York City Dept of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195 (S.D.N.Y. June 17, 2021) ................96

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ASSIGNED SCHOOL –NOTIFICATION ..................................................................................... 98 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ......................................................98 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................100 Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) .................................................................101 V.A. v. New York City Dept of Educ.,20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) ...........102

BEHAVIOR ......................................................................................................................... 104 Applied Behavior Analysis (ABA) .......................................................................................................... 104 Application of the New York City Department of Education, 20-108 (8/10/20)...................................................104 Functional Behavior Assessments (FBA) and/or Behavior Intervention Plan (BIP)................................ 105 L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) ...................105 Application of a Student with a Disability, Appeal No. 20-083 (June 26, 2020) ...................................................109 In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 ................................................111

BULLYING .......................................................................................................................... 112 Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024)......................112 B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) .........................115 D.S. v. New York City Dept of Educ., et al., 600 F.Supp.3d 434, 439-451, 455-60 (S.D.N.Y. 2022) .......................118 T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) ..........................................................122 E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug, 25, 2022)....124

CHILD FIND ........................................................................................................................ 124 Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023)....................................................124 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................126 O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) .....................129 E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug, 25, 2022)....130 OSEP QA 21-05; August 24, 2021 ..........................................................................................................................132 In re Toledo Pub. Sch., Ohio State Administrative Agency, CP-0117-2021, Dec. 1, 2021, 121 LRP 43127 ...........135 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ...............................................................................................................................................................136

COMPENSATORY EDUCATION ............................................................................................ 136 D.C.G. v. New Y0rk City Dep’t of Educ., 23 Civ. 1337 (JPC)(JW), 2024 WL 1343598 (S.D.N.Y. Mar. 30, 2024) .....136 Tobuck v. David Banks, 23 Civ. 1356 (LGS), 2024 WL 1349693 (S.D.N.Y. Mar. 2024) ...........................................139 Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) ......................................................................141 Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023)....................................................143 Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) ........................145 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................146 Application of a Student with a Disability, Appeal No. 23-022 (Mar. 17, 2023) ...................................................147 R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) .................148 Application of a Student with a Disability, Appeal No. 21-091 at pp. 42-47, 48-50 .............................................151 Application of a Student with a Disability, Appeal No. 21-091 at pp. 38-42, 48-50 .............................................151 O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) ......................153 Doe v. E. Lyme Bd. of Educ., 962 F.3d 649 (2d Cir. 2020) .....................................................................................153

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VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) .............155 Z.Q. v. New York City Bd. of Educ., No. 1:20-CV-9866-ALC, 2022 WL 903003 (S.D.N.Y. Mar. 28, 2022) ..............156 P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop. Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022)...................................................................................................158 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) .....................................................................159 Application of the New York City Department of Education, 20-108 (8/10/20)...................................................159

CONSENT........................................................................................................................... 160 COVID-19 .......................................................................................................................... 160 Compensatory Education ..................................................................................................................... 160 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ................................160 Z.Q. et al. individually and on behalf of themselves and all other similarly situated v. New York City Dep’t of Educ., No. 22-939-cv, 2023 WL 1486387 (2d Cir. Feb. 3, 2023) ............................................................................163 Eaton Community City Sch, Ohio State Educational Agency, Apr. 30, 2021 (121 LRP 20304) ..............................164 In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) .........................166 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) .................................................................169 In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 ...........................................170 In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) ..............................................................................................................................................................................171 Implementation of IEP ......................................................................................................................... 172 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ................................172 Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023)..................................................................175 M.P. v. New York City Dept of Educ., 21 Civ.7439 (LGS), 2022 WL 4109774 (S.D.N.Y. Sept. 8, 2022) ..................175 In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) .........................178 In Re Eastern Howard Sch. Corp. State of Indiana Education Agency, Feb. 26. 2021 (121 LRP 9941) ..................182 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) .................................................................183 In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 ................................................184 In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 ...........................................185 In Re Long Beach Unified School District /California State Agency/10-12-20; 120 LRP 33840 .............................186 In Re Student with a Disability North Dakota State Agency 11-10-20;120 LRP 36828 .........................................187 In re Mahwah Twp. Pub. Sch. Dist. (State of New Jersey Education Agency, May 4, 2021 (78 IDELR 236) ..........188 In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) ..............................................................................................................................................................................189 Miscellaneous ...................................................................................................................................... 190 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ................................190 Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024) ....................................................................192 In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) ........................195 Eaton Community City Sch, Ohio State Educational Agency, Apr. 30, 2021 (121 LRP 20304) ..............................199 OSEP QA 21-05; August 24, 2021 ..........................................................................................................................200 New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) .................................................................203 Application of a Child with a Disability, Appeal No, 20-195 at pp.13-20 ..............................................................204 Provision of Educational Services: L.V. v New York City Dep’t of Educ., No. 19-CV-05451 (AT)(KHP) 2020 WL 6782234 ................................................................................................................................................................205 SETSS Services at Home: Application of a Student with a Disability, Appeal No. 20-122 (Sept. 17, 2020) ..........206

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Pendency Placement – Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020)....................................................................................................................207 Prospective Relief: Application of the New York City Department of Education, 20-108 (8/10/2020) ................207 Tuition Reimbursement Equitable Considerations: Application of the New York City Bd. of Educ. Appeal No. 20131 (Sept. 10, 2020) ..............................................................................................................................................208

COMMITTEE ON SPECIAL EDUCATION (CSE) ....................................................................... 208 Notice .................................................................................................................................................. 208 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................208 Parent Participation ............................................................................................................................. 210 Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ..................................................................211 Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) ...........213 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .....................................................214 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................215 T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) ..........................................................216 A.D. v. District of Columbia, Civil Action No. 20-cv-2765 (BAH), 2022 WL 683570 (D.D.C. Mar. 8, 2022) ............217 Mr. and Mrs. O v Glastonbury Bd, of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691, at *5, *8-*12 (D. Conn.

Dec. 29, 2021) .......................................................................................................................................................218 B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) ..................................220 Parent Submitted Evaluations and Data ............................................................................................... 225 Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ..................................................................225 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................227 Required Members .............................................................................................................................. 228 Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) ...........228 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................228 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................229 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................231 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................233 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................234 Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) ..............................................................................................................................................................................235 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ..............................................................................................................................................................................237 Application of the New York City Department of Education, 20-108 (8/10/20)...................................................237 Interpretation Services......................................................................................................................... 238 Y.A. v. New York City Dep’t. of Educ., No. 15-cv-05790 (CM), 2016 WL 5811843, at *2, *6, *13-*14, *19 (S.D.N.Y. Sept. 21, 2016) ......................................................................................................................................................238

DECLASSIFICATION & TERMINATION OF SERVICES ............................................................. 239 Kevin T. v. Elmhurst Community Sch. Dist., No. 205, No. 01 C 0005, 2002 WL 433061 at *14 (U.S.D.C. Northern District of Ill. Eastern Division, Mar 20, 2002) ......................................................................................................239

DISCIPLINE OF STUDENTS .................................................................................................. 240 xiv

Expungement ....................................................................................................................................... 240 Application of the New York City Dep’t of Educ., Appeal No. 23-171 (Sept. 13, 2023) ........................................240 Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) ......................................................................242 Interim Alternative Educational Setting (IAES) ..................................................................................... 243 Application of a Student with a Disability, Appeal No. 21-091 at pp. 38-42, 48-50 .............................................243 Manifestation Determination .............................................................................................................. 245 Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) ......................................................................245 Application of the New York City Dep’t of Educ., Appeal No. 23-171 (Sept. 13, 2023) ........................................246 Application of a Student with a Disability, Appeal No. 11-034 .............................................................................250 Miscellaneous ...................................................................................................................................... 252 OSEP Dear Colleague Letter on Implementation of IDEA Discipline Provisions, # 22-01 (July 19, 2022) .............252 Timeout Rooms, Restraints, and Seclusion ........................................................................................... 253 A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024)..............253 Application of a Student with a Disability, Appeal No. 21-091 at pp. 42-50.........................................................259 Application of a Student with a Disability, Appeal No. 21-091 at pp. 47-48.........................................................263

DUE PROCESS IMPARTIAL HEARINGS ................................................................................. 264 Impartial Hearing Officers (IHO) ........................................................................................................... 264 Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) ...................................................264 Bias - SRO: Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 ...................................266 Retrospective Testimony...................................................................................................................... 266 Application of the Bd. of Educ., Appeal No. 23-127 (Aug. 21, 2023) ....................................................................266 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................267 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................268 Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) ................................269 Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) ..................................................270 Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) ...................................................................271 Bd. of Ed. of the Mamaroneck Union Free Sch. Dist. v. A.D., No. 17-3462-cv, 739 Fed.Appx. 79 (2d. Cir. 2018).272 Scope of Review ................................................................................................................................... 273 Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023)..................................................................273 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................273 Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) ...................................................274 Bd. of Ed. of the Mamaroneck Union Free Sch. Dist. v. A.D., No. 17-3462-cv, 739 Fed.Appx. 79 (2d. Cir. 2018).276 Application of the Dep’t of Educ., Appeal No 21-184 (Oct. 27, 2021) ..................................................................276 Application of a Student with a Disability, Appeal No. 20-101, (8/3/20)..............................................................277 Application of a Student with a Disability, Appeal No. 20-101 (8/3/20)...............................................................277 Sufficiency of Decision ......................................................................................................................... 277 Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) ..................................................277 Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 .....................................................279 Telephonic Hearings/In-Person Hearings ............................................................................................. 279

xv

“After Hours”: Application of a Student with a Disability, Appeal No. 20-009 (March 19, 2020) ........................279 Timelines and Time Requirements ....................................................................................................... 280 Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024) .......................................................280

ELIGIBILITY FOR SPECIAL EDUCATION SERVICES ................................................................. 281 ............................................................................................................................................................. 281 Classification ........................................................................................................................................ 281 Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ..................................................................283 Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) ...........284 Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) ............................................................285 Polanco v. Banks, 2024 WL 2105530, No 23-373-cv (2d Cir. May 10, 2024) ........................................................286 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .....................................................287 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................289 B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) .........................290 Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) ........................290 Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) ................................291 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................294 Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) .......................................................................................................................................295 Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) .....................................................................296 Learning Disabilities ............................................................................................................................. 297 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................297 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................301 Twice Exceptional/Gifted Students ...................................................................................................... 303 C.K. and K.K. v. Baldwin Union Free Sch. Dist., Civil Action No. 22-2265 (GRB)(SIL), 2023 WL 6158699 (E.D.N.Y. Sept. 21, 2023) ......................................................................................................................................................303 Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) ..............................305

EVALUATION AND REEVALUATION .................................................................................... 308 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ....................308 Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) ......................................................................308 Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) ............................................................310 Application of the Bd. of Edu., Appeal No. 23-127 (Aug. 21, 2023) ......................................................................311 Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) ........................313 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ....................................................314 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................317 Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023)..................................................................317 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................319 O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) ......................320

EXHAUSTION OF ADMINISTRATIVE REMEDIES ................................................................... 321 DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) ......................321 M.G. v. Rye City Sch. Dist., No 23-CV-9742 (CS) (S.D.N.Y. Jan. 30, 2025) .............................................................323

xvi

Araujo v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS), 2024 WL 2925190 (S.D.N.Y. June 2024)..................325 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ................................326 Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024) ....................................................................328 Simmons v. Mount Vernon City Sch. Dist., et al., 2024 WL 2837625, No. 23-288-cv (2d Cir. June 5, 2024) ........332 L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) ..........334 Luna Perez v. Sturgis Pub. Sch., 21-887, 2023 WL 2575928 (S.Ct. Mar. 21, 2023) ...............................................335 Z.Q. et al. individually and on behalf of themselves and all other similarly situated v. New York City Dep’t of Educ., No. 22-939-cv, 2023 WL 1486387 (2d Cir. Feb. 3, 2023) ............................................................................336 P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop. Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022)...................................................................................................338 Schneider v. Mahopac Cent. Sch. Dist, et al., 21-2201, 2022 WL 1316211 (2d Circuit May 3, 2022) ...................339 R.R. v. Greenwich Bd. of Educ., No.3:21-CV-00873 (JCH), 2022 WL 1443979, (D. Conn. May 6, 2022) ..............340 Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017) .................................................................................342 Schneider v Mahopac Cent. Sch. Dist. et al, No. 20-CV-709 (CS), 2021 WL 3887913 (S.D.N.Y. Aug. 31, 2021) ....344 B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) ..................................346 Ventura de Paulino v New York City Dep’t of Educ. 959 F.3d 519 (2d Cir. 2020) .................................................347 G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----Fed.Appx. --- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) .........................................................................................................................................................347

EXTENDED SCHOOL YEAR................................................................................................... 348 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ...............................................................................................................................................................348 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. February 26, 2021) .348

FREE APPROPRIATE PUBLIC EDUCATION (FAPE) ................................................................. 349 Cumulative Procedural Violations ........................................................................................................ 349 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................349 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ....................................................351 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................356 Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 9898 (2017) .........................................................................357 Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) .................................................................358 Miscellaneous ...................................................................................................................................... 359 Doe v. E. Lyme Bd. of Educ., 962 F.3d 649 (2d Cir. 2020) .....................................................................................359

INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE) ................................ 360 Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) ......................................366 Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023)....................................................367 Application of a Student with a Disability, Appeal No. 23-102 at pp. 21-23 (July 31, 2023) ................................370 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................371 B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) .........................372 Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) ..........................................................373 Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022)..................................................................375 Application of the Bd. of Educ., Appeal No 22-047 (June 30, 2022) .....................................................................376 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) ..................................................................................................378

xvii

INDIVIDUALIZED EDUCATION PROGRAM (IEP) ................................................................... 379 Amendment ......................................................................................................................................... 379 Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., No. 19-270, -- F.3d – 2021 WL 800579 (2d Cir. Mar. 3, 2021) .379 Assistive Technology ............................................................................................................................ 380 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ...................380 L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) ...................381 Goals and Objectives ............................................................................................................................ 383 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ...................383 Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) ..........................................................384 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................385 Application of the Bd. Of Educ., Appeal No. 22-037 (June 9, 2022) .....................................................................386 Development ....................................................................................................................................... 387 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................387 Application of a Student with a Disability, Appeal No. 23-102 at pp. 7-15 (July 31, 2023) ..................................387 Evaluations .......................................................................................................................................... 389 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................389 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................389 Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023)..................................................................390 O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) .....................392 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................393 Grouping .............................................................................................................................................. 394 Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) ..................................................................394 Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024).............................395 Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) ....................................................396 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .....................................................397 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................398 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................399 Miscellaneous ...................................................................................................................................... 400 Retrospective Testimony: C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) .........................................................................................................................400 Location ............................................................................................................................................... 401 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ....................................................401 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................403 Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) .................................................................404 V.A. v. New York City Dept of Educ.,20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) ...........405 Needs of Student ................................................................................................................................. 406 Application of the Bd. of Educ., Appeal No. 23-127 (Aug. 21, 2023) ....................................................................406 Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) ........................407 Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022)..................................................................408 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................412

xviii

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................412 Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) ...................................................................413 Needs of Student: Methodology .......................................................................................................... 415 Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024).............................415 Falmouth School Dep’t v. Mr. and Mrs. Doe, 44 F.4th 23 (1st Cir. 2022) ...............................................................415 Parent Counseling and Training............................................................................................................ 420 L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) ...................420 Parent Concerns ................................................................................................................................... 421 Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) ..............................................................................................................................................................................421 Placement ............................................................................................................................................ 424 B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) .....................................................................................................................................................................426 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ....................429 Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) ......................................................430 Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) ......................................................434 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................437 Melendez v. Banks, et al, 21-CV-1243 (MKB), 2023 WL 6283108 (E.D.N.Y. Sept. 26, 2023) ................................438 J.D. and L.D. v. Rye Neck Union Free Sch. Dist., 22 CV 3039 (VB), 2023 WL 1797170 (S.D.N.Y. Feb. 7, 2023) .....440 Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) ........................443 E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 551-54 (S.D.N.Y. 2016) ..............................................445 Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) ..........................................................448 Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) ..........................................................448 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................451 Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) ..............................................................................................................................................................................452 KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) ...............................................................................................................................................................454 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) ........455 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ..............................................................................................................................................................................456 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) .457 Application of a Student with a Disability, Appeal No. 20-101, (8/3/2020)..........................................................457 Application of a Student with a Disability, Appeal No. 20-101 (8/3/2020)...........................................................457 Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) .........................................458 Predetermination................................................................................................................................. 458 J.D. and L.D. v. Rye Neck Union Free Sch. Dist., 22 CV 3039 (VB), 2023 WL 1797170 (S.D.N.Y. Feb. 7, 2023) .....458 Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) ........................460 Application of the Bd. Of Educ., Appeal No. 22-037 (June 9. 2022) .....................................................................461 Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) .......................................................................................................................................462 Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) .......................................................................................................................................462

xix

Mr. and Mrs. O v Glastonbury Bd, of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691, at *5, *8-*12 (D. Conn.

Dec. 29, 2021) .......................................................................................................................................................463 B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) ..................................465 Present Levels of Performance ............................................................................................................. 470 Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) ...........................................470 Related Services ................................................................................................................................... 471 Thomason v. New York City Dept of Educ., 23-cv-8654 (LJL), 2025 WL 307223 (S.D.N.Y. Jan. 27, 2025) .............471 Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024).............................472 Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) ...........473 Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) ....................473 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .....................................................474 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................476 Application of a Student with a Disability, Appeal No. 23-102 at pp. 7-15 (July 31, 2023) ..................................477 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................478 Starting Date – When Required to be in Effect ..................................................................................... 480 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................480 Application of a Student with a Disability, Appeal No. 23-093 (June 23, 2023) ...................................................480 Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) ....................................................483 E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug. 25, 2022)....484 Transition Services ............................................................................................................................... 485 Perkiomen Valley Sch. Dist. V. R.B., 18-3-009, 121 LRP 13443 (U.S. D.C. E.D.PA. (Apr. 13, 2021)) ......................485 R.B. v. New York City Dep’t Educ., No. 16-1952-cv, 689 Fed.Appx. 48 (2d Cir. Apr. 27, 2017) .............................488 Transportation ..................................................................................................................................... 488 Zimmerman v. Banks, 23-cv-9003 (JGK), 2024 WL 4882370, (S.D.N.Y. Nov. 25, 2024) ........................................488 Araujo v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS), 2024 WL 2925190 (S.D.N.Y. June 2024)..................490 J.L. on behalf of J.P. et al., v. New York City Dep’t of Educ., 17cv7150 (DLC), 2024 WL 2700563 (S.D.N.Y. May 24, 2024) .....................................................................................................................................................................491 VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) .............493 VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) .............493 Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) ...................................................................494 KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) ........495 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ..............................................................................................................................................................................495 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) .496 Procedural Violations ........................................................................................................................... 497 Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) .......................................................................................................................................497 Related Services ................................................................................................................................... 499 Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) ....................................................499 J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) ...................500 Application of the Dep’t of Educ., Appeal No. 23-105 at pp. 6, 21-22, 27 (July 26, 2023)....................................502 Application of the Dep’t of Educ., Appeal No. 23-105 at pp. 19 n.10, 22-24 (July 26, 2023) ...............................504

xx

Application of the Bd. Of Educ., Appeal No. 22-037 (June 9. 2022) .....................................................................505 Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) .......................................................................................................................................509

LEAST RESTRICTIVE ENVIRONMENT (LRE) ........................................................................... 510 Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) ......................................................................510 Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) ......................512 Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) ..........................................................514 A.D. v. District of Columbia, Civil Action No. 20-cv-2765 (BAH), 2022 683570 (D.D.C. Mar. 8, 2022) ..................515 Yonkers (NY) Public Schools, 69 IDELR 18, 116 LRP 46675 (OCR 2016) ................................................................517 Application of a Student with a Disability, Appeal No.20-083 (June 26, 2020) ....................................................520 Prospective Relief: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020).....................522

MEDIATION ....................................................................................................................... 523 MOOTNESS ....................................................................................................................... 523 Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) ......................................................................523 Doherty v. Bice, 2024 WL 2096705, No 23-1217 (2d Cir. May 10, 2024) .............................................................525 K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) .................526 P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop. Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022)...................................................................................................527 B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) ..................................527 Pendency Placement: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) .......................................................................................................................................................528

PENDENCY PLACEMENT ..................................................................................................... 529 J.L. v. New York City Dept. of Educ., No. 24 Civ. 1926, 2024 WL 4882482 (S.D.N.Y. Nov. 25, 2024) ....................529 J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) ...................530 L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) ..........532 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................535 Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) ..........................................................537 Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) ..........................................................538 Application of a Student with a Disability, Appeal No. 23-022 (Mar. 17, 2023) ...................................................539 In re student with a disability, Appeal No. 21-075, (June 24, 2021) .....................................................................541 Application of a Child with a Disability, Appeal No, 20-195 at pp. 8-11 ...............................................................541 Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) .......................................................................................................................................................542 Mootness: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) .....................................................................................................................................................................543 Payment: Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) ............................544 Ventura de Paulino v New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) ................................................544 Neske v. New York City Dep’t of Educ., --Fed.Appx. – 2020 WL 5868279, No. 19-4068-cv (2d Cir. 2020) ...........545 Arelis Araujo et al. v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020) .......................546 Injunctive Relief and Payment: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) ......547 Injunctive Relief: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) ..............................................................................................................................................................................547

xxi

PRIOR WRITTEN NOTICE .................................................................................................... 548 REMEDIES ......................................................................................................................... 548 Compensatory Education ..................................................................................................................... 548 Boffa v. Banks, 23 Civ. 7596 (AT), 2025 WL 327381 (S.D.N.Y. Jan. 29, 2025) ......................................................548 Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) ......................................................................550 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................551 R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) .................552 Direct Payment .................................................................................................................................... 555 Moonsammy v. Banks, 23 Civ. 10491 (PAE), 2024 WL 4277521 (S.D.N.Y. Sept. 23, 2024) ...................................555 Cohen v. New York City Dep’t of Educ., et al., 1:21-cv-06260-MKV, 2023 WL 6258147 (S.D.N.Y. Sept. 26, 2023) ..............................................................................................................................................................................558 Application of a Student with a Disability, Appeal No. 23-102 at pp. 20-21 (July 31, 2023) ................................560 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................562 Maysonet v. New York City Dep’t of Educ., 22 Civ. 1685 (LGS), 2023 WL 2537851 (S.D.N.Y. Mar. 16, 2023) ......563 Application of a Student with a Disability, Appeal No. 20-122 (9/17/20).............................................................564 Injunctive Relief ................................................................................................................................... 565 M.H. v. New York City Dept. of Educ., 24-CV-2431 (AS), 2025 WL 27534 (S.D.N.Y. Jan. 3, 2025) ........................565 J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) ...................565 Simmons v. Mount Vernon City Sch. Dist., et al., 2024 WL 2837625, No. 23-288-cv (2d Cir. June 5, 2024) ........568 Tobuck v. David Banks, 23 Civ. 1356 (LGS), 2024 WL 1349693 (S.D.N.Y. Mar. 2024) ...........................................570 L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) ..........572 Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) ..........................................................575 Y.S. v. New York City Bd. of Educ., No. 1:21-cv-00711 (MKV), 2021 WL 1164571 (S.D.N.Y. Mar. 26, 2021) ........576 EMC v. Ventura Unified Sch. Dist., Case No. 2:20-cv-09024-SVW-PD, 2020 WL 7094071 (C.D. Cal. Oct. 14, 2020) ..............................................................................................................................................................................577 Payment for Pendency Services: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) ...578 Pendency Placement: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) .....................................................................................................................................................................579 Prospective Relief ................................................................................................................................ 580 Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) ..................................................580 K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) .................580 Impact of COVID-19: Application of the New York City Department of Education, 20-108 (8/10/2020) .............581 Least Restrictive Environment: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020) .581 Application of the New York City Department of Education, 20-108 (8/10/2020)...............................................582 Remand................................................................................................................................................ 583 Thomas v. Aviles-Ramos, 24-CV-3904 (JPO), 2025 WL 1267446 (S.D.N.Y. Apr. 30, 2025) ...................................583 B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) .....................................................................................................................................................................585 N.K.M. and M.M. v. Rye City Sch. Dist., No. 23-CV-1109, 2024 WL 4803941 (S.D.N.Y. Nov. 15, 2024) ...............586 Zimmerman v. Banks, 23-cv-9003 (JGK), 2024 WL 4882370, (S.D.N.Y. Nov. 25, 2024) ........................................588 Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) ................................589 R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) .................592

xxii

Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) ..................................................593 Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) ...................................................594 Mr. O. v. Glastonbury v. Bd. of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691 (D. Conn. Dec. 29, 2021) ...596 V.A. v. New York City Dept of Educ., 20-CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) ..........597 Services ................................................................................................................................................ 598 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................598 Tuition Reimbursement ....................................................................................................................... 600 Application of a Student with a Disability, Appeal No. 23-102 at pp. 20-21 (July 31, 2023) ................................600 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................601 Equitable Relief .................................................................................................................................... 602 Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) ......................................................................602 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................603 Enforcement ........................................................................................................................................ 605 DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) ......................605

SECTION 504 OF THE REHABILITATION ACT OF 1973 ........................................................... 605 Damages .............................................................................................................................................. 605 Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024) ....................................................................605 Barnes v. Gorman, 122 S.Ct. 2097 (2002) .............................................................................................................609 Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562 (2022) .....................................................................610 Eligibility .............................................................................................................................................. 613 DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) ......................613 Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024)....................616 D.S. v. New York City Dept of Educ., et al., 600 F.Supp.3d 434, 439-451, 455-60 (S.D.N.Y. 2022) .....................619 Free Appropriate public education (FAPE) under section 504............................................................... 623 M.H. v. New York City Dept. of Educ., 24-CV-2431 (AS), 2025 WL 27534 (S.D.N.Y. Jan. 3, 2025) .........................623 VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) .............624 Robert F. v. N. Syracuse Cent. Sch. Dist., No. 5:18-CV-00594 (LEK/ATB), 2021 WL 3569108 at *3-*5, *7-*8 (N.D.N.Y. Aug. 12, 2021) .......................................................................................................................................624 Least Restrictive Environment .............................................................................................................. 626 Yonkers (NY) Public Schools, 69 IDELR 18, 116 LRP 46675 (OCR 2016) ................................................................626 Miscellaneous ...................................................................................................................................... 628 In Re Cent. Dauphin Sch. Dist. -- Pa. State Agency (Oct. 7, 2014) 114 LRP 47648 ................................................628 L.B. v. New York City Dep’t of Educ., 21 CV6626 (VEC), 2023 WL 1779550 (S.D.N.Y. Feb. 6, 2023) .....................629 S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) .....................630 Violations ............................................................................................................................................. 631 T.H. v. The Archdiocese of New York, 23-CV-2154 (JPO), 2025 WL 370150 (S.D.N.Y. Feb. 3, 2025) .....................631 A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024)..............632 Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) ..............638

xxiii

Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) ......................640

SECTION 1983 .................................................................................................................... 641 DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) .....................641 DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) ......................642 T.S. v. Bay Shore Union Free Sch. Dist., 23-cv-3217(DLI)(RML), 2024 WL 4362601 (E.D.N.Y. Sept. 30, 2024) ....643 Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) ..............645

SECTION 3602-C: DUAL ENROLLMENT ................................................................................ 645 Application of the Dep’t of Educ., Appeal No. 24-141 (May 17, 2024) ................................................................645

SERVICE ANIMALS ............................................................................................................. 648 C.B. by and through P.G. and D.G. v. Saucon Valley Sch. Dist., No. 5:21-cv-03956 (E.D. Pa. Nov. 18, 2021) .......648

STATUTE OF LIMITATIONS ................................................................................................. 650 Tolling .................................................................................................................................................. 650 Boffa v. Banks, 23 Civ. 7596 (AT), 2025 WL 327381 (S.D.N.Y. Jan. 29, 2025) ......................................................650 Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) ............................................................652 P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop. Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022)...................................................................................................653 L.B. v. New York City Dep’t of Educ., 21-CV-1033 (VEC), 2022 WL 704712 (S.D.N.Y. Mar. 8) ..............................654 N.J. and G.J, v NYC Dept. of Educ, et al, No. 18-CV-6173 (JMF), 2021 WL 965323 (S.D.N.Y. Mar. 15, 2021) .......655 Y.A. v. New York City Dep’t. of Educ., No. 15-cv-05790 (CM), 2016 WL 5811843, at *2, *4, *5, *8 -*10 (S.D.N.Y. Sept. 21, 2016). .....................................................................................................................................................656 G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----,Fed.Appx. --- (2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) .........................................................................................................................................................658 Miscellaneous ...................................................................................................................................... 658 D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) ..................................................................................................658

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS .................................................... 659 Appropriateness of Placement ............................................................................................................. 659 B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) .....................................................................................................................................................................659 Khanimova v. Banks, 23-CV-09531, 2025 WL 722876 (S.D.N.Y. Mar. 6, 2025) .....................................................661 Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023)....................................................663 Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) ......................................................665 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................667 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................668 Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) .................................670 Falmouth Sch. Dep’t v. Mr. and Mrs. Doe, 44 F.4th 23, (1st Cir. 2022) ..................................................................672 T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) ..........................................................673 M.P. v. New York City Dept of Educ., 21 Civ.7439 (LGS), 2022 WL 4109774 (S.D.N.Y. Sept. 8, 2022) ..................674 S.B. v. New York City Dep’t of Educ., 221 Civ.9139 (LGS), 2022 WL 3997016 (S.D.N.Y. Sept. 1, 2022) ................676

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Application of a Student with a Disability, Appeal No. 22-065 (July 25, 2022) .....................................................677 Application of a Student with a Disability, Appeal No. 21-024, pp.7-16 (Mar. 17, 2021) .....................................679 Application of a Child with a Disability, Appeal No, 20-195 at pp. 20-23 .............................................................680 Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) .681 Application of the New York City Bd. of Educ., Appeal No 20-131 (Sept. 10, 2020) .............................................681 Burden of Proof.................................................................................................................................... 682 C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) ..............................................................................................................................................................................682 Equitable Considerations ..................................................................................................................... 682 B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) .....................................................................................................................................................................682 Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) ......................................683 Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) ......................................685 A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) ...............................686 Neske v. New York City Dep’t of Educ., 22-2962-cv, 2023 WL 8888586 (2d Cir. Dec. 26, 2023) ..........................688 Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) ......................................................689 Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept. 25, 2023) ..................................691 Application of a Student with a Disability, Appeal No. 23-102 at pp. 16-18 (July 31, 2023) ................................692 Z.A.R. v. New York City Dep’t of Educ., 19-cv-2615 (CBA)(PK), 2022 WL 4536241 (E.D.N.Y. Sept. 28, 20220) .....693 Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023).......................................................695 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................695 Maysonet v. New York City Dep’t of Educ., 22 Civ. 1685 (LGS), 2023 WL 2537851 (S.D.N.Y. Mar. 16, 2023) ......696 Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) .................................698 T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) ..........................................................698 Application of a Student with a Disability, Appeal No. 22-065 (July 25, 2022) .....................................................699 R.G. v. New York City Dept. of Educ., No. 18-CV-11219 (JPC)(RWL), 122 LRP 3694 (S.D.N.Y. Jan. 24, 2022). ......700 Donohue v New York City Dep’t of Educ., 120-CV-1942-ALC-KHP, 2021 WL 4481344 (S.D.N.Y. Sept 30, 2021) ..704 Application of a Student with a Disability, Appeal No, 21-024, p. 16 (Mar. 17, 2021) .........................................705 Application of a Child with a Disability, Appeal No, 20-195 at pp. 23-24 .............................................................705 Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) .............................................705 Application of a Student with a Disability, Appeal No. 20-101 (8/3/20)...............................................................706 Tutoring ............................................................................................................................................... 706 D.C.G. v. New Y0rk City Dep’t of Educ., 23 Civ. 1337 (JPC)(JW), 2024 WL 1343598 (S.D.N.Y. Mar. 30, 2024) .....706 Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023)....................................................708 Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023)..........................710 Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022)..................................................................712 miscellaneous ...................................................................................................................................... 714 Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) ....................................................714 Speculation .......................................................................................................................................... 715 Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) ....................................................715 Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024) .......................................................716 Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) .....................................................717 Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) ..................................719 Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) ................720

xxv

Notice of Intent to Remove .................................................................................................................. 721 Thomason v. New York City Dept of Educ., 23-cv-8654 (LJL), 2025 WL 307223 (S.D.N.Y. Jan. 27, 2025) .............721 Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) ......................................723 Related Services ................................................................................................................................... 724 Leonarda Bautista v. David C. Banks, 23-cv-11161, 2025 WL 861223 (Mar. 19, 2025) ........................................724 Cindy Moonsammy v. Banks, 23 Viv. 10491 (PAE), 2025 WL 733254 (S.D.N.Y. Mar. 7, 2025) .............................725

xxvi

AMERICANS WITH DISABILITIES ACT (ADA) Issue: ADA

T.H. v. The Archdiocese of New York, 23-CV-2154 (JPO), 2025 WL 370150 (S.D.N.Y. Feb. 3, 2025)

Dispute: Did the district’s actions violate the ADA. Conclusion: The District Court concluded that the district’s actions did not violate the ADA. Key Take Away: A student and a parent cannot maintain an ADA lawsuit charging peer-on-peer harassment without showing that the claimed harassment was “severe” and “pervasive” and that the school administrators were “deliberately indifferent” to it.

Reasoning: The minor daughter and her father commenced an action in the United States District Court for the Southern District of New York. The parent and daughter claimed that the district inadequately addressed the bullying of the student from kindergarten through eighth grade in violation of Section 504 and the ADA. The district argued that the discrimination claim “failed” because any bullying against the student did not rise to the threshold level under federal law and that the district was not deliberately indifferent to it if it did.

Because of the similarity of the language of the Section 504 and the ADA laws, the District Court pointed out that the Second Circuit of Appeals had directed Courts to “analyze such claims together”. In order to successfully prove a violation of Section 504 and the ADA, the District Court said that it must be shown that (1) the student is a qualified student with a disability, (2) the district is subject to either Section 504 or the ADA, and (3) the student was denied the opportunity to participate in or benefit from the district’s services, program, or activities or was otherwise discriminated against by the district by reason of her disability.

In this case, the student and the parent argue that the district deprived the student of educational opportunities and discriminated against her by insufficiently responding to “peer on peer” harassment. Because the courts in this circuit have not decided what the applicable standard for such harassment under the ADA and Section 504 is, district courts in the second circuit have looked to Supreme Court caselaw having to do with “student-on-student bullying” under Title IX of the Education Amendments of 1972.

In its Title IX review, the Supreme Court looks at whether (1) the student was harassed because of his disability, (2) the harassment was so severe, pervasive and objectively offensive that it altered his education, (3) that the school district had actual notice of the disability-based harassment and (4) the school was deliberately indifferent to it.

1

In this case, the district argued thar the harassment of the student was not “severe and pervasive” and that the school district was not deliberately indifferent to the harassment that did occur.

Whether the school’s conduct rose to the level of “severe” and “pervasive”, the Court again looked at court decisions under Title IX. The District Court concluded that “largely isolated instances of name calling and teasing with only one instance of a likely disability-related insult”, such as what happened here, was not something that would be severe and pervasive.

About the district’s second argument – assuming that the conduct was sufficiently pervasive and severe, whether the district’s administrators were “deliberately indifferent” to such conduct, the District Court looked at authority from the same Title IX Supreme Court case. Such authority advised that “deliberate indifference to bullying … is found where the school’s response was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the [school] itself intended for the harassment to occur”. The District Court concluded that this was not the case. The District Court further concluded that the school took good faith actions to deal with the problems that the student had faced. Further, the District Court pointed out that one of those issues involved a situation which the school district had no control over.

The District Court granted the district’s request to dismiss the lawsuit.

Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024) Issue: ADA and Section 504 Dispute: Did the district provide the student with reasonable accommodations regarding the student’s disability.

Conclusion: The district did not show that it provided the student with reasonable accommodations regarding her disability.

Key Take Away: The mere fact that a parent initially agrees to an ADA or Section 504 accommodation does not make it a reasonable one. If the parent thereafter raises issues regarding its agreed upon accommodation, the question becomes whether the accommodation is in fact reasonable. This must be determined in a highly fact-specific case by a case reasonableness analysis.

Reasoning: The student in this case is eligible for special education because of severe asthma.

“Beginning in the fall of 2020 and continuing throughout the early stages of the COVID-19 pandemic, the New York State Department of Health (NYSDOH) issued a series of interim guidance covering in-person instruction at schools”. Initial guidance on August 26, 2020, required that “all students, faculty, staff and other individuals at schools wear at least an acceptable face covering and permitted exemptions of alternatives for those medically unable to wear masks”.

2

On April 9, 2021, the state modified its initial mandate to include “a mask mandate similar to that in the first interim guidance and permitted exemptions from the school mask, mandate for students who are unable to medically tolerate a mask, including students where such mask would impair their physical health or mental health”. For the 2020-21 school year, the NYSDOH allowed a school district to reopen “on the condition that it complied with the mask mandate”.

“Accordingly [the district] implemented a reopening plan that required all individuals to wear face masks while on school premises”.

For the 2020-21 school year, the student’s parent requested that the district “secure a medical exemption from the mask mandate …”. The parent’s efforts were unsuccessful. The district ultimately requested that the parent provide a “formal exemption letter from a physician.” The parent then obtained a letter from the student’s treating physician verifying that the student had asthma and setting forth that she “should be allowed to engage in physical activity without a mask in order to prevent wheezing”. The district rejected the parent’s request. Ultimately, the district advised the parent that on the advice of the district’s consulting physician, who had spoken with the student’s physician, it was “denying [the student’s] medical exemption request” based on the conclusion “that the mask was not creating difficulty with [the student’s] asthma”.

The parent subsequently requested of the district that the student attend school remotely, which request was denied. Thereafter, the parent requested that the student “be placed in a classroom with air conditioning and that she be allowed to wear a face shield or mesh mask as opposed to a cloth mask”. The district denied this request. For the 2021-22 school year, the parent sought another exemption for the student with the support of the student’s physician who “certified” that the student “is not medically able to tolerate a mask”. The district denied this request on the recommendation of its consulting physician but did agree to assign the student to a classroom with air conditioning. Thereafter the state issued guidance for the 2021-22 school year which required that all persons and visitors to the school “must wear masks at all times indoors…and permitted exemptions for people with medical or developmental conditions that prevent them from wearing a mask”.

The parent filed a Complaint in Federal District Court on September 7, 2021. The Complaint set forth “constitutional and statutory” violations and sought injunctive relief and damages. The Court initially denied the parent’s motion for a temporary injunction and then for a preliminary injunction. Regarding this, the Court “concluded that rational basis review applied to the mask mandate because the mandate did not impinge on any fundamental right”. On November 3, 2021, the parties reported to the Court that they had reached a settlement agreement that would see the student wearing a “mesh mask” at school. The Court agreed that such “accommodation should remain in effect unless vacated by the Court”. This was notwithstanding the fact that “after the accommodation was implemented” the parent set forth that “it became clear that with the mesh mask, the student still had trouble breathing sometimes and that the mask caused [the student] to develop fungal rashes which in turn caused her to miss school or temporarily wear another kind of mask that exacerbated her issues with breathing,” 3

The parent filed an Amended Complaint on January 20, 2022, alleging a number of causes of action. Among other things, the complaint alleged in Count 5 a violation of the ADA and in Count 6 a violation of Section 504 of the Rehabilitation Act of 1973; both setting forth that the district failed to reasonably accommodate the student’s disability. In a decision dated March 24, 2023, the Court dismissed the plaintiff’s amended complaint in its entirety. Regarding Counts 5 and 6, the Court concluded, among other things, that these claims were limited to injuries suffered prior to November 3, 2021, the date the school district granted the mesh mask accommodation, because the accommodation had been “deemed acceptable by all parties”.

The parent now appeals, among other things, the District Court’s denial of the parent’s statutory ADA and Section 504 claims as it relates to the district court’s decision to dismiss the parent’s post November 3, 2021, ADA and Section 504 claims on the basis that the school district had granted the parent’s request for a mesh mask accommodation.

The Court of Appeals stated first that “[i]n concluding that damages are not available to [the parent] for injuries allegedly sustained after November 3, 2021, the District Court implicitly held that the mesh mask accommodation was reasonable for the purposes of [the parent’s] disabilities claims”. The Appeals Court said that “the determination of whether a particular accommodation is reasonable involves a fact-specific, case by case inquiry that considers, among other factors, the effectiveness of the accommodation in light of the nature of the disability in question”.

Moreover, the Appeals Court advised that “the reasonableness analysis is highly fact-specific and cannot be determined on the pleadings where the relevant factors are numerous and balancing them requires a full evidentiary record”.

In this case the Appeals Court explained that the “mesh mask accommodation offered to [the student] was not per se reasonable simply because she agreed to it at the outset”. The Appeals Court also looked at the allegations raised by the parent regarding the continuing issues with the mesh mask as discussed above. The Appeals Court said that “[a]ccepting these allegations as true” as it needed to be “at the motion to dismiss stage”, the parent “plausibly alleges that the mesh mask accommodation was not effective” and that as a consequence it could not be concluded “that the [district] afforded [the student] a plainly reasonable accommodation”.

The Appeals Court therefore reversed the “District Court’s judgement insofar as it cut off [the parent’s] claims for damages after November 3, 2021, and remand[ed] the case for further proceedings on this issue”.

A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024) Issue: Did the parent set forth a claim of discrimination in violation of Section 504 or the ADA.

4

Dispute: Does a violation of Section 504 or the ADA lie in circumstances where the record shows that the school district did not act with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Conclusion: A violation of Section 504 or the ADA requires that the record show that the district acted with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Key Take Away: Denial of FAPE is not a 504 or ADA violation, unless the district acted with deliberate indifference, bad faith, or gross misjudgment. In this particular case, the parent did not show that a violation of a free appropriate public education (FAPE) stemming from the District’s failure to comply with relevant State regulations relating to the time out room constituted deliberate indifference, bad faith, or gross misjudgment.

Reasoning: The student in this case has been diagnosed with ADHD and an Oppositional Defiant Disorder.

During the relevant time period, the student was in kindergarten to the third grade.

The student began kindergarten in the 2017-18 school year in a non-special education program.

At the beginning of the school year, because of his “challenging behavior”, the school referred him for a Functional Behavioral Assessment (FBA) and recommended that “a formal Behavioral Intervention Plan [BIP] be generated”. Among other things, the BIP recommended that “if [the student’s] behavior escalated to a point where he became physical, removal from the environment might be required and that such removal should be executed by a trained staff utilizing a team approach”. If removed, the student “should be moved to a safe location close by, given the opportunity to deescalate, and reintroduced to his class when the team determined he was ready”. The location was called “the peace room”.

The school district’s CSE met in November 2017. It found the student eligible for special education as a student with an emotional disability. During the classroom observation conducted as a part of the CSE’s evaluation, “the student was reported to have threatened to slash a female in the face with a fist full of colored pencils”. A psychiatric report prepared as a result of the student’s initial evaluation “recited the student’s history [to that date] in kindergarten including his cursing at teachers, requiring physical restraints, hitting, biting, kicking and throwing objects in the classroom, threatening other students and trying to stab them with pencils or scissors, and attempting to run out of the classroom”. The CSE also considered a psychiatric evaluation that was provided by the parents and that was consistent with the other information the CSE possessed.

The November 2017 CSE meeting recommended that the student be placed in a special education environment. This included “an integrated co-teaching program with two teachers and a kindergarten aide in the classroom”. Additionally, the student was provided with counseling, a social skills group, psychology consultations with the student’s teachers, and a transition plan to 5

change to the new program. The CSE was concerned that it did not understand what was causing the student’s conduct and wanted to come up with a plan to address that. “At or during the CSE meeting, the school psychologist created a positive behavior reinforcement plan and explained that to the parent. Additional supports were provided to the student during kindergarten which in included the school psychologist meeting with a social worker and the parent “almost on a weekly basis [from October to January] concerning behavioral strategies being used in school to address [the student’s] behaviors”.

During kindergarten, the student’s teachers “would sometimes remove [the student] to the peace room, and need to restrain him". The parents were aware of the use of the peace room and of the use of restraints and were notified when such used. The parents were also aware of the peace room policies and received information about them. The student completed kindergarten in the district’s recommended program.

The CSE met in March 2018 to develop the student’s IEP for the 2018-19 school year when the student would be in the first grade. Meeting reports indicated that the student was “making good progress in his special education placement, although he was occasionally still engaging in high intensity misbehaviors”. At the meeting, the CSE “elevated the level of [student] support” for the next year. The CSE recommended “an increase in integrated co-teaching from three to four hours a day and a 1:1 aide for six hours and 15 minutes each day to be with [the student] during lessons, meetings, and independent work, and specials, gym, art, lunch, and recess”.

During the first semester of the first grade, the student’s parent “regularly communicated with school staff” and received “reports about [the student’s] behavior”. The mother concluded that although the student “sometimes needed a break or sometimes had to be removed from class” that “things were going reasonably well.” “School staff were optimistic that their interventions were working.”

‘During the second semester of the student’s first grade year, the student “was engaging in disruptive and aggressive behaviors on a daily basis, including trying to leave the class or the school premises, throwing objects in class, refusing to get up off the floor, and kicking, hitting, punching, and biting”. This was communicated to the parent as well as how the district responded.

The CSE met again in March 2019 in advance of the student’s second grade year. The student’s BIP was “updated”. Additionally, “the CSE recommended additional services including having the school psychologist come to the classroom four hours a week to help teachers assist the student”.

After the CSE meeting, and for the balance of the first grade, the student’s behaviors “continued to escalate”. The student was “seriously hurting staff and threatening to do so”. Although the student’s “team” “did their best to provide [the student] with educational programming – including providing instruction in the peace room when [the student] would accept it – but had to scale back and remove demands on [the student} to address the safety concerns caused by his conduct”.

6

The CSE met next in May 2019. At that meeting, the CSE felt that “some of the strategies being used to address [the student’s] behaviors were instead reinforcing them”. It recommended that the student “be placed in a therapeutic out of district program for second grade because the school could not safely manage his behaviors”. The parents asked the CSE to give the student “another chance” on the basis that his behaviors were “now under control and he would be safe to stay for second grade”, which the district “accommodated”. The district also provided the parent with a list of New York State-approved therapeutic programs. In June, the district “developed an updated FBA and BIP at the parent’s request”.

The CSE met in July of 2019 and reviewed the progress of the search for a “therapeutic out of district placement” for the student. The parent “had not approved either of the two programs she had visited,” one which involved a trial period and wished that the student would be able to attend the district’s school for second grade; this, on the basis that the student had “started taking medication” and that his behavior “had not been a problem” at the summer program he had attended. As an “accommodation” the district agreed that the student could return to school under the program recommended by the March 2019 CSE. This, while the parent continued to look for a therapeutic out of district program. In the event that the parent was unable to find a program that she approved of, and if the student’s behavior “retuned to the level of the preceding year”, the CSE advised that “it would need to recommend pursuit of the therapeutic out of district placement”.

The student’s behaviors continued at the beginning of the 2019-20 school year when the student was in the second grade – including “hitting, threatening, eloping, climbing on furniture, threatening to harm himself, kicking biting, and cursing”. The student was no longer on the medication that he had been taking during the July CSE meeting.

Because of “multiple suspensions”, the district held a further CSE meeting at the end of September 2019 “during which it was reported that [the student’s] negative behaviors had returned to the level of the prior spring; that staff had scaled back academic demands” for the student as otherwise, the student displayed “physically aggressive behaviors that were a safety risk to himself and others; [and] that school staff were unable to help [the student] regulate his emotions”. The CSE concluded that the student “needed a smaller, more structured environment with continuous therapeutic support” and recommended that the student be placed in such a day program. Pending such placement, the CSE recommended that the student either receive “four hours of daily home instruction” or “enroll in a transitional intensive day treatment [IDT] program”. “Following the meeting, the student’s special education teacher, the school psychologist and the parents visited the IDT program. The student attended the IDT program and then was “accepted and transitioned into a therapeutic out of district program … that [the parent] had approved. With new medication, the student “did well” at the new therapeutic day placement.

The student’s mother requested an impartial hearing on October 15, 2019 asserting the violation of the IDEA, Section 504, the ADA and the Regulations of the New York State Education 7

Department. The parent claimed that the district had violated Section 504 and the ADA “by repeatedly excluding [the student] from his classroom and isolating him from his peers because of his disability; failing to provide him with appropriate behavioral interventions as a reasonable accommodation resulting in the denial of reasonable access to the District’s programs, … and insisting that [the student’s] parents accompany him on field trips”. Among other things, the parent sought 405.3 hours of compensatory education.

On March 10, 2021, the IHO found that the student “was not denied a free appropriate public education (FAPE) under the IDEA, Section 504, or the ADA and denied [the parent’s] request for relief”. Regarding the “peace room”, the IHO found “no violations of State regulations”.

Regarding the IDEA, the IHO found that the student’s “educational program was appropriate based on his evaluations” and that no procedural inadequacies impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or cause a significant deprivation of educational benefits. The IHO concluded that “[u]nder Section 504 and the ADA, the student was not denied a FAPE, or excluded from participation in or denied the benefits of the district’s program by reason of his disability”.

The parent appealed the IHO’s decision to the Office of State Review (OSR). Regarding the parent’s claims under Section 504 and the ADA, the SRO pointed out “that it had no jurisdiction to review any portion of the parent’s claims regarding violations of section 504 or the ADA”.

Regarding the parent’s claims about the “peace room” , the SRO held that the district’s policies “did not comply with State regulations, because the policy lacked required specifics such as prohibitions on placing a student in a locked room or a room in which the student cannot be continuously observed; circumstances under which the timeout room may be used; data collection to monitor the effectiveness of the use of the timeout room; information that would be provided to parents; and staff training on the policies and procedures on the use of the timeout room”. Further, the SRO found that “the student’s IEPs did not reference the use of the timeout room or the maximum amount of time the student would need to be in the room as a behavioral consequence”. The SRO also found that, while “well-meaning, the use of the peace room for multiple purposes and in response to varying precipitating factors was itself problematic as the room ultimately might have come to reinforce the student’s escape/avoidance behaviors”.

The SRO further concluded that the use of the peace room resulted in “lost educational time” and a denial of a FAPE.” Regarding physical restraints, the SRO held that there was an “insufficient basis in the hearing record to modify the IHO’s determination that the district’s use of restraints on [the student] was appropriate”. The SRO also found that the district used improper procedures before placing the student in the IDT program”. Regarding the parent’s request for compensatory education, the SRO found that the student was eligible to receive 94.8 hours of compensatory tutoring – a reduction from the requested 405.3 due to the fact that the SRO found a loss of educational time only as a result of the use of the timeout room and the “improper removal” of the student to the IDT program.

8

The parent commenced this action, asserting a violation of Section 504 and the ADA. Among other things, the parent sought relief asserting the district’s “repeatedly unlawful use of restraints and seclusion” and the student’s consequent inability to access his education for 405.3 hours of time from kindergarten through the end of second grade.

The Court began its analysis explaining that “[t]he ADA and Section 504 both protect qualified individuals with a disability”. The Court further explained that “[b]ecause the standards adopted by the two statutes are nearly identical, courts in this circuit consider the merits of these claims together”. Regarding this, a “[a] plaintiff asserting a discrimination claim under the ADA or Section 504 must show that (1) plaintiff is a qualified individual with a disability, (2) plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion or discrimination was due to plaintiff’s disability”. The Court advised that “discrimination can include the failure to provide a reasonable accommodation”. In this case, the Court said that “there is no dispute that [the student] is a qualified individual with a disability or that the district is a public entity subject to the ADA and Section 504.”. The Court pointed out that in the special education context, “an ADA or Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate public education as compared to the free appropriate public education nondisabled students receive”. However, “because the ADA and Section 504 address discrimination against disabled students rather than incorrect or erroneous special education treatments, a plaintiff challenging a school district’s response to his disability can succeed only by demonstrating that a school district acted with bad faith or gross misjudgment.” The Court noted here that “courts have equated gross misjudgment with deliberate or reckless indifference”.

In this case, the “plaintiff argues “that the District discriminated against [the student] by (1) inappropriately using the time out room, (2) developing inappropriate behavioral programing, and (3) inappropriately using restraints”. The Court noted that while the SRO found that the use of the time out room “did not comply with State regulations and thus its use of that room deprived [the student] of a FAPE”, this “does not alone establish deliberate indifference” and that given that the student’s “behavior sometimes required his removal from the classroom” and that the student “was placed in the time-out room for physical safety reasons”, the violations of the time out room-related regulations “simply [do] not rise to the [required] level of deliberate indifference to the student’s needs”. “Likewise,” the Court said while “the removals negatively impacted [the student’s] educational programming and may have reinforced his maladaptive behaviors” may have shown that the district could have made “better or different decisions” it does not show that the District “appreciated that it was likely violating [the student’s] rights but did not care”. Further, the Court concluded that the plaintiff had not shown that “the district was deliberately indifferent in its development of behavioral programming or its use of restraints”.

Regarding this, the Court pointed to the District’s “close attention to [the student’s] needs through constant meetings, communications, adjustments …”; that “[s]chool personnel acted diligently and thoughtfully” regarding the student; “kept in close contact with his parents; met with them regularly to discuss the student’s behavior and how it could be addressed, carefully 9

considered the reports and other information provided, made modifications in attempts to improve the situation; and accommodated [the parent’s] request” to have the student “remain at the school” notwithstanding the CSE’s view that the student “needed a therapeutic out of district program”. The Court said that “[t]he record shows, as the SRO held that the district’s intentions were well-meaning, appropriate and thoughtful – “a mindset inconsistent with a claim of deliberate indifference”. The Court concluded that “plaintiff has not provided evidence from which a rationale factfinder could conclude that the District intentionally discriminated against [the student] in violation of Section 504 or the ADA”.

The Court granted the school District’s request to dismiss the parent’s case.

A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024) Issue: Did the parent set forth a claim of discrimination in violation of Section 504 or the ADA. Dispute: Does a violation of Section 504 or the ADA lie in circumstances where the record shows that the school district did not act with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Conclusion: A violation of Section 504 or the ADA requires that the record show that the district acted with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Key Take Away: Denial of FAPE is not a 504 or ADA violation, unless the district acted with deliberate indifference, bad faith, or gross misjudgment. In this particular case, the parent did not show that a violation of a free appropriate public education (FAPE) stemming from the District’s failure to comply with relevant State regulations relating to the time out room constituted deliberate indifference, bad faith, or gross misjudgment.

Reasoning: The student in this case has been diagnosed with ADHD and an Oppositional Defiant Disorder.

During the relevant time period, the student was in kindergarten to the third grade.

The student began kindergarten in the 2017-18 school year in a non-special education program.

At the beginning of the school year, because of his “challenging behavior”, the school referred him for a Functional Behavioral Assessment (FBA) and recommended that “a formal Behavioral Intervention Plan [BIP] be generated”. Among other things, the BIP recommended that “if [the student’s] behavior escalated to a point where he became physical, removal from the environment might be required and that such removal should be executed by a trained staff utilizing a team approach”. If removed, the student “should be moved to a safe location close by, given the opportunity to deescalate, and reintroduced to his class when the team determined he was ready”. The location was called “the peace room”.

10

The school district’s CSE met in November 2017. It found the student eligible for special education as a student with an emotional disability. During the classroom observation conducted as a part of the CSE’s evaluation, “the student was reported to have threatened to slash a female in the face with a fist full of colored pencils”. A psychiatric report prepared as a result of the student’s initial evaluation “recited the student’s history [to that date] in kindergarten including his cursing at teachers, requiring physical restraints, hitting, biting, kicking and throwing objects in the classroom, threatening other students and trying to stab them with pencils or scissors, and attempting to run out of the classroom”. The CSE also considered a psychiatric evaluation that was provided by the parents and that was consistent with the other information the CSE possessed.

The November 2017 CSE meeting recommended that the student be placed in a special education environment. This included “an integrated co-teaching program with two teachers and a kindergarten aide in the classroom”. Additionally, the student was provided with counseling, a social skills group, psychology consultations with the student’s teachers, and a transition plan to change to the new program. The CSE was concerned that it did not understand what was causing the student’s conduct and wanted to come up with a plan to address that. “At or during the CSE meeting, the school psychologist created a positive behavior reinforcement plan and explained that to the parent. Additional supports were provided to the student during kindergarten which in included the school psychologist meeting with a social worker and the parent “almost on a weekly basis [from October to January] concerning behavioral strategies being used in school to address [the student’s] behaviors”.

During kindergarten, the student’s teachers “would sometimes remove [the student] to the peace room, and need to restrain him". The parents were aware of the use of the peace room and of the use of restraints and were notified when such used. The parents were also aware of the peace room policies and received information about them. The student completed kindergarten in the district’s recommended program.

The CSE met in March 2018 to develop the student’s IEP for the 2018-19 school year when the student would be in the first grade. Meeting reports indicated that the student was “making good progress in his special education placement, although he was occasionally still engaging in high intensity misbehaviors”. At the meeting, the CSE “elevated the level of [student] support” for the next year. The CSE recommended “an increase in integrated co-teaching from three to four hours a day and a 1:1 aide for six hours and 15 minutes each day to be with [the student] during lessons, meetings, and independent work, and specials, gym, art, lunch, and recess”.

During the first semester of the first grade, the student’s parent “regularly communicated with school staff” and received “reports about [the student’s] behavior”. The mother concluded that although the student “sometimes needed a break or sometimes had to be removed from class” that “things were going reasonably well.” “School staff were optimistic that their interventions were working.”

11

‘During the second semester of the student’s first grade year, the student “was engaging in disruptive and aggressive behaviors on a daily basis, including trying to leave the class or the school premises, throwing objects in class, refusing to get up off the floor, and kicking, hitting, punching, and biting”. This was communicated to the parent as well as how the district responded.

The CSE met again in March 2019 in advance of the student’s second grade year. The student’s BIP was “updated”. Additionally, “the CSE recommended additional services including having the school psychologist come to the classroom four hours a week to help teachers assist the student”.

After the CSE meeting, and for the balance of the first grade, the student’s behaviors “continued to escalate”. The student was “seriously hurting staff and threatening to do so”. Although the student’s “team” “did their best to provide [the student] with educational programming – including providing instruction in the peace room when [the student] would accept it – but had to scale back and remove demands on [the student} to address the safety concerns caused by his conduct”.

The CSE met next in May 2019. At that meeting, the CSE felt that “some of the strategies being used to address [the student’s] behaviors were instead reinforcing them”. It recommended that the student “be placed in a therapeutic out of district program for second grade because the school could not safely manage his behaviors”. The parents asked the CSE to give the student “another chance” on the basis that his behaviors were “now under control and he would be safe to stay for second grade”, which the district “accommodated”. The district also provided the parent with a list of New York State-approved therapeutic programs. In June, the district “developed an updated FBA and BIP at the parent’s request”.

The CSE met in July of 2019 and reviewed the progress of the search for a “therapeutic out of district placement” for the student. The parent “had not approved either of the two programs she had visited,” one which involved a trial period and wished that the student would be able to attend the district’s school for second grade; this, on the basis that the student had “started taking medication” and that his behavior “had not been a problem” at the summer program he had attended. As an “accommodation” the district agreed that the student could return to school under the program recommended by the March 2019 CSE. This, while the parent continued to look for a therapeutic out of district program. In the event that the parent was unable to find a program that she approved of, and if the student’s behavior “retuned to the level of the preceding year”, the CSE advised that “it would need to recommend pursuit of the therapeutic out of district placement”.

The student’s behaviors continued at the beginning of the 2019-20 school year when the student was in the second grade – including “hitting, threatening, eloping, climbing on furniture, threatening to harm himself, kicking biting, and cursing”. The student was no longer on the medication that he had been taking during the July CSE meeting.

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Because of “multiple suspensions”, the district held a further CSE meeting at the end of September 2019 “during which it was reported that [the student’s] negative behaviors had returned to the level of the prior spring; that staff had scaled back academic demands” for the student as otherwise, the student displayed “physically aggressive behaviors that were a safety risk to himself and others; [and] that school staff were unable to help [the student] regulate his emotions”. The CSE concluded that the student “needed a smaller, more structured environment with continuous therapeutic support” and recommended that the student be placed in such a day program. Pending such placement, the CSE recommended that the student either receive “four hours of daily home instruction” or “enroll in a transitional intensive day treatment [IDT] program”. “Following the meeting, the student’s special education teacher, the school psychologist and the parents visited the IDT program. The student attended the IDT program and then was “accepted and transitioned into a therapeutic out of district program … that [the parent] had approved. With new medication, the student “did well” at the new therapeutic day placement.

The student’s mother requested an impartial hearing on October 15, 2019, asserting the violation of the IDEA, Section 504, the ADA and the Regulations of the New York State Education Department. The parent claimed that the district had violated Section 504 and the ADA “by repeatedly excluding [the student] from his classroom and isolating him from his peers because of his disability; failing to provide him with appropriate behavioral interventions as a reasonable accommodation resulting in the denial of reasonable access to the District’s programs, … and insisting that [the student’s] parents accompany him on field trips”. Among other things, the parent sought 405.3 hours of compensatory education.

On March 10, 2021, the IHO found that the student “was not denied a free appropriate public education (FAPE) under the IDEA, Section 504, or the ADA and denied [the parent’s] request for relief”. Regarding the “peace room”, the IHO found “no violations of State regulations”.

Regarding the IDEA, the IHO found that the student’s “educational program was appropriate based on his evaluations” and that no procedural inadequacies impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or cause a significant deprivation of educational benefits. The IHO concluded that “[u]nder Section 504 and the ADA, the student was not denied a FAPE, or excluded from participation in or denied the benefits of the district’s program by reason of his disability”.

The parent appealed the IHO’s decision to the Office of State Review (OSR). Regarding the parent’s claims under Section 504 and the ADA, the SRO pointed out “that it had no jurisdiction to review any portion of the parent’s claims regarding violations of section 504 or the ADA”.

Regarding the parent’s claims about the “peace room” , the SRO held that the district’s policies “did not comply with State regulations, because the policy lacked required specifics such as prohibitions on placing a student in a locked room or a room in which the student cannot be continuously observed; circumstances under which the timeout room may be used; data collection to monitor the effectiveness of the use of the timeout room; information that would 13

be provided to parents; and staff training on the policies and procedures on the use of the timeout room”. Further, the SRO found that “the student’s IEPs did not reference the use of the timeout room or the maximum amount of time the student would need to be in the room as a behavioral consequence”. The SRO also found that, while “well-meaning, the use of the peace room for multiple purposes and in response to varying precipitating factors was itself problematic as the room ultimately might have come to reinforce the student’s escape/avoidance behaviors”.

The SRO further concluded that the use of the peace room resulted in “lost educational time” and a denial of a FAPE.” Regarding physical restraints, the SRO held that there was an “insufficient basis in the hearing record to modify the IHO’s determination that the district’s use of restraints on [the student] was appropriate”. The SRO also found that the district used improper procedures before placing the student in the IDT program”. Regarding the parent’s request for compensatory education, the SRO found that the student was eligible to receive 94.8 hours of compensatory tutoring – a reduction from the requested 405.3 due to the fact that the SRO found a loss of educational time only as a result of the use of the timeout room and the “improper removal” of the student to the IDT program.

The parent commenced this action, asserting a violation of Section 504 and the ADA. Among other things, the parent sought relief asserting the district’s “repeatedly unlawful use of restraints and seclusion” and the student’s consequent inability to access his education for 405.3 hours of time from kindergarten through the end of second grade.

The Court began its analysis explaining that “[t]he ADA and Section 504 both protect qualified individuals with a disability”. The Court further explained that “[b]ecause the standards adopted by the two statutes are nearly identical, courts in this circuit consider the merits of these claims together”. Regarding this, a “[a] plaintiff asserting a discrimination claim under the ADA or Section 504 must show that (1) plaintiff is a qualified individual with a disability, (2) plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion or discrimination was due to plaintiff’s disability”. The Court advised that “discrimination can include the failure to provide a reasonable accommodation”. In this case, the Court said that “there is no dispute that [the student] is a qualified individual with a disability or that the district is a public entity subject to the ADA and Section 504.”. The Court pointed out that in the special education context, “an ADA or Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate public education as compared to the free appropriate public education nondisabled students receive”. However, “because the ADA and Section 504 address discrimination against disabled students rather than incorrect or erroneous special education treatments, a plaintiff challenging a school district’s response to his disability can succeed only by demonstrating that a school district acted with bad faith or gross misjudgment.” The Court noted here that “courts have equated gross misjudgment with deliberate or reckless indifference”.

In this case, the “plaintiff argues “that the District discriminated against [the student] by (1) inappropriately using the time out room, (2) developing inappropriate behavioral programing, 14

and (3) inappropriately using restraints”. The Court noted that while the SRO found that the use of the time out room “did not comply with State regulations and thus its use of that room deprived [the student] of a FAPE”, this “does not alone establish deliberate indifference” and that given that the student’s “behavior sometimes required his removal from the classroom” and that the student “was placed in the time-out room for physical safety reasons”, the violations of the time out room-related regulations “simply [do] not rise to the [required] level of deliberate indifference to the student’s needs”. “Likewise,” the Court said while “the removals negatively impacted [the student’s] educational programming and may have reinforced his maladaptive behaviors” may have shown that the district could have made “better or different decisions” it does not show that the District “appreciated that it was likely violating [the student’s] rights but did not care”. Further, the Court concluded that the plaintiff had not shown that “the district was deliberately indifferent in its development of behavioral programming or its use of restraints”.

Regarding this, the Court pointed to the District’s “close attention to [the student’s] needs through constant meetings, communications, adjustments …”; that “[s]chool personnel acted diligently and thoughtfully” regarding the student; “kept in close contact with his parents; met with them regularly to discuss the student’s behavior and how it could be addressed, carefully considered the reports and other information provided, made modifications in attempts to improve the situation; and accommodated [the parent’s] request” to have the student “remain at the school” notwithstanding the CSE’s view that the student “needed a therapeutic out of district program”. The Court said that “[t]he record shows, as the SRO held that the district’s intentions were well-meaning, appropriate and thoughtful – “a mindset inconsistent with a claim of deliberate indifference”. The Court concluded that “plaintiff has not provided evidence from which a rationale factfinder could conclude that the District intentionally discriminated against [the student] in violation of Section 504 or the ADA”.

The Court granted the school District’s request to dismiss the parent’s case.

Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) Dispute: Did the plaintiff state a claim for a violation of the ADA and Section 504.

Conclusion: The plaintiff did not state a claim for the violation of the ADA and Section 504.

Basis of the Court’s Decision: The student in this matter has been diagnosed with Down Syndrome.

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The parent’s consolidated amended complaint (CAC) alleges violations of, inter alia, the ADA and Section 504 of the Rehabilitation Act of 1973. Such claims are based upon allegations of “a failure to provide” reasonable accommodation to the student for the 2020-2021 school year.1 The Court first pointed out that “[t]he standards governing claims under the ADA and Section 504 are identical” and so they are to be considered “in tandem”.

“To make out a prima facie case under the ADA or Section 504, a plaintiff must show that he is a qualified individual with a disability; (2) that the defendants are subject to the pertinent statute; and (3) that he was denied the opportunity to participate in or benefit from defendants’ services, programs or activities, or was otherwise discriminated against by defendants, by reason of his disability”.

Importantly, “[w]here a plaintiff asserts denial of a FAPE, there must be evidence that the school district acted with deliberate or reckless indifference to the student’s federally protected rights or with bad faith or gross misjudgment”.

In this case, “[t]he parties do not dispute that [the student] is disabled under the terms of the ADA and Section 504 or that the district is covered by these statutes”. At issue here “is whether the CAC plausibly alleges that defendants failed to provide reasonable accommodations to [the student] or discriminated against [the student] because of his disability, and thereby acted with deliberate or reckless indifference or bad faith or gross misjudgment”.

As a result of pendency, among other things, the student received his “special services daily in the school district followed by his special education instruction in the local public library”. At the beginning of the 2020-21 school year the library closed because of the COVID-19 Pandemic. The plaintiff alleged a denial of Section 504 and the ADA’s reasonable accommodation’s requirements on his claim that “despite the fact that the existing pendency agreement called for the defendant school district to seek an alternative educational placement for [the student] during the times in which the local library was closed and his home was unavailable, the defendant school district failed to research or offer a single alternative site,” resulting in the parties being at “an impasse,” and “that therefore [the student] was denied a reasonable accommodation.” The parent “contend[ed] that the defendants’ failure to provide the physical space necessary to accommodate a single desk and a chair for the [student’s] instruction illustrates reckless indifference, gross bad faith, and gross misjudgment”.

The Court disagreed. It explained that in relevant part the student’s pendency placement provided that (1) the student would “receive his special services daily in the district”; (2) this This is the parent’s “second bite of the apple”. Regarding this, as indicated above, by order, the Court had earlier dismissed the parent’s claims that the student had been discriminated against in violation of Section 504 and the ADA. However, the Court dismissed the parent’s claims without prejudice. The parent’s amended his complaint with additional allegations. As indicated above, the Court set forth that the amended complaint also did not set forth a claim of discrimination under the ADA or Section 504 of the Rehabilitation Act of 1973.

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would be “followed by his special education instruction in the local public library”; and (3) “in the event the library [was] closed for a period exceeding 7 days and the student’s home [was] unavailable, the parties will seek in good faith to orchestrate another, alternative off-site placement location.”

As it had in its earlier order, the Court pointed out that the parent’s position “rests upon the inaccurate contention that [the pendency] agreement required the district, solely, to seek an alternative educational placement for [the student] during times in which the local library was closed more than 7 days and [the student’s] home was not available”. Like its first order, the Court pointed out that after the library had closed for the school year, the district had tried to provide services in the student’s home but was unsuccessful in doing so because of the parent’s requirements. The Court repeated what it said in its prior order which was that when the library and the parent’s home was not available the parent could not insist that anything “short of having [the student] physically present in the district for his special education instruction would be [un]acceptable”. The Court repeated what it had said before which was if the library and the parent’s home were not available, pendency required that “[t]he parties are to arrange for an alternative, off-site location.”

With respect to the pendency requirement that “the parties [were] to arrange for an alternative, off-site location, the Court advised that this portion of the pendency agreement (1) applies to both parties; (2) calls for the parties to seek a placement location that is off-site and; (3) requires the parties to seek said location in good faith”. With respect to (1) above, the Court added that this meant that “the parties were to work together – presumably, cooperatively – to identify an alternative, off-site location”. With respect to (2) above, the Court further pointed out that the parent’s claim relative to the need for only a desk and chair was “irrelevant” as the pendency agreement “contemplated an off-site location”. Finally, and with respect to (3) above, the Court said that “there were no allegations that the plaintiff acted in good faith -- on his own or with the [district] -- in seeking an alternative off-site location”.

The Court further said that “to the extent, [the parent] alleges that the district failed to investigate or secure an alternative and appropriate placement situs in support of his discrimination claims, his allegations [were] conclusory, without any factual allegations which would establish the plausibility of those claims”.

The Court concluded that “while the student’s impasse characterization [was] generally accurate, and his allegations would support this position, plausibly alleging an impasse [did] not compel the conclusion that the district acted with deliberate or reckless interference to [the student’s] federally protected rights or with bad faith or gross misjudgment”. Consistent with this, the Court said that “upon careful[] review of the CAC, [it found] that the CAC [did] not allege facts that plausibly supports plaintiff’s conclusory allegations of discrimination by [the district] based upon [the student’s] disability.

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Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) Dispute: Whether the parent set forth a violation of Section 504 of the Rehabilitation Act of 1973 or the ADA. Conclusion: The Circuit Court agreed with the District Court and concluded that the parent did not set forth a violation of Section 504 of the Rehabilitation Act of 1973 or the ADA. Basis of the Court’s Decision: The District Court concluded that the parent failed to assert a prima facie claim under the ADA or the Rehabilitation Act. The Circuit Court agreed. It pointed out that “to make a claim under either statue, the parent must show that (1) the student is a qualified individual with a disability, (2) defendants are subject to one of the Acts and (3) the student was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities or was otherwise discriminated against by the defendants because of his disability”. The Court further pointed out that “under both statutes a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual to have access to and take a meaningful part in public services”. However, “[a] plaintiff alleging that he was denied a reasonable accommodation bears the burdens of both production and persuasion as to the existence of some accommodation that would allow him to meet the essential eligibility requirements of the service, program, or activity at issue”.

The Court said that “as an initial matter”, the parent failed to adduce sufficient evidence that [the student] was discriminated against due to his disability” and that what the plaintiff did, which was to merely point to a violation of FAPE, was insufficient.

Further, the Court said that the parent did not “as he must” show that his proposed accommodation -- here the student’s placement in the district’s middle school – was reasonable.

In fact, the Court pointed out that the parent conceded that implementing the student’s IEP as envisioned was not possible in an existing program and further, did not provide any nonconclusory evidence that the student’s placement in the public school in a newly developed program or in a mainstreamed classroom was possible, let alone reasonable. Consistent with this, the Court referenced that the ADA imposes liability for, among other things, “discriminatory refusal to undertake a feasible accommodation not mere refusal to explore possible accommodations where, in the end, no accommodation was possible”.

Luna Perez v. Sturgis Pub. Sch., 21-887, 2023 WL 2575928 (S.Ct. Mar. 21, 2023) Dispute: Whether a parent may obtain compensatory damages under the ADA. Conclusion: The Supreme Court reserved the question.

Basis of the Supreme Court’s Decision: 18

In this case, the Supreme Court determined that where the student’s ADA claim requested compensatory damages – a form of relief that was not provided for by the IDEA, it was not required to exhaust the administrative remedies under the IDEA before commencing that claim.

The question was raised in the case as to whether the ADA may provide the remedy of compensatory damages in the first instance. In concluding its decision relating to the exhaustion of administrative remedies, the Court said that it was not deciding that question at this time.

L.B. v. New York City Dep’t of Educ., 21 CV6626 (VEC), 2023 WL 1779550 (S.D.N.Y. Feb. 6, 2023) Dispute: Whether the parents have stated a claim relating to Section 504 of the Rehabilitation Act of 1973 and the ADA. Conclusion: The Court determined that the parents stated a claim relating to Section 504 of the Rehabilitation Act of 1973 and the ADA. Basis of the Court’s Decision: “To state a claim under the Rehabilitation Act of 1973 and the ADA for educational discrimination against a student with disabilities, a plaintiff must allege adequately (1) that [the student] is a qualified individual with a disability; (2) that [the district] is subject to one of the Acts; and (3) that [the student] was denied the opportunity to participate in or benefit from [the district’s] services, program, or activities, or was otherwise discriminated against by [the district], by reason of his disability”. To plead that the student was denied services because of his disability, “something more than a mere violation of the IDEA…” must be plead. In particular, “facts from which the Court can plausibly infer that [the district] acted in bad faith or with gross misjudgment when administering disability services” must be pled.

In this case, among other things, the district asserted that the parents “fail[ed] to state claims under the ADA or the Rehabilitation Act because they do not allege that [the student] was treated differently from non-disabled students or denied reasonable accommodations based on his disability”.

The Court found that the parent’s pleadings asserted facts to show that the district failed “to provide [the student] with a high school education for two years”. The Court said that “[s]uch an extensive absence from school purportedly due to [the district’s] violative conduct, which the Court must accept as true for purposes of [the district’s] motion to dismiss, is sufficient for the Court to infer gross negligence or reckless indifference. See Gabel v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp 2d 313, 336 (S.D.N.Y. 2005); R.B. v. Bd. of Educ of City of New York, 99 F. Supp.2d at 411, 414-15, 419 (S.D.N.Y. 2000); Conway v. Bd. of Educ. of Northport-East Northport Sch. Dist., No. 13-CV-5283 (SJS)(WDW), 2014 WL 3828383, at *18 (E.D.N.Y. Aug. 1, 2014).

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Barnes v. Gorman, 122 S.Ct. 2097 (2002) Dispute: Whether punitive damages are an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Conclusion: The Supreme Court held that punitive damages are not an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Basis of the Supreme Court’s Decision The respondent in this case, a paraplegic, “suffered medical problems – including a bladder infection, serious lower back pain, and uncontrollable spasms in his paralyzed areas” as a result of a ride to the police station subsequent to his arrest and which “left him unable to work full time”.

Respondent brought suit against members of the Kansas City Board of Police Commissioners and asserted discrimination under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. “A jury found petitioners liable”. It awarded over $1 million in compensatory damages and $1,2 million in punitive damages. “The District Court vacated the punitive damages award, holding that punitive damages are unavailable in suits under Section 202 of the ADA and Section 504 of the Rehabilitation Act of 1973”. The Court of Appeals for the Eighth Circuit reversed the District Court. The Supreme Court took up the matter. It reversed the Eighth Circuit and held that punitive damages were not an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Starting out, the Court said that Section 202 of the ADA prohibits discrimination against the disabled by public entities and that Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against the disabled by recipients of federal funding, including private organizations. Both statutes, the Court said, “are enforceable through private causes of action” and “the remedies for violations of Section 202 of the ADA and Section 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the under Civil Rights Act of 1964”.

The Court said further that “[a]lthough Title VI does not mention a private right of action”, prior caselaw has found that “there is an implied right of action,” “leaving it beyond dispute that private individuals may sue to enforce Title VI”. However, the Court also said that it was “less clear what remedies are available in such a suit”.

The Court then moved on to say, importantly, that “Title VI invokes Congress’ power under the Spending Clause … to place conditions on the grant of federal funds”. It said that the Court has “repeatedly characterized” “Spending Clause legislation as much in the nature of a contract: in return for federal funds, the recipients agree to comply with federally imposed conditions”. And, “just as a valid contract requires offer and acceptance of its terms, the legitimacy of Congress’ power to legislate under the spending power rests on whether the recipient voluntarily and knowingly accepts the terms of the contract”. “Accordingly”, the Court said, “if Congress intends 20

to impose a condition on the grant of federal monies, it must do so unambiguously”. The Court continued, say that while “all contract law rules” do not apply to Spending Clause legislation, “we have regularly applied the contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages”.

“The same analogy applies, the Court said “in determining the scope of damages remedies” and that a statute’s “contractual nature has implications for our construction of the scope of available remedies”. “One of these implications,” the Court believed, “is that a remedy is appropriate relief … only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature. It continued that “[a] funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation but also to those remedies traditionally available in suits for breach of conduct”.

Unlike compensatory damages the Court cited treatises to the effect that “punitive damages, unlike compensatory damages and injunction are generally not available for breach of contract”.

Relating to the argument that “an implied punitive damages provision [can] reasonable be found in Title VI” and that “reasonably applied contractual terms are simply those that comport with community standards of fairness”. The Court looked at these arguments and concluded that “[n]either approach would support the implication here of a remedy that is not normally available for contract actions and that is of indeterminate magnitude”.

The Court said that punitive damages on top of compensatory damages “could well be disastrous,” that it is “doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability[, and] it is doubtful whether they would even have accepted the funding if punitive damages was a required condition”. With this in mind, the Court said that “it can hardly be said that community standards of fairness support such an implication” of punitive damages.

Its “conclusion” here, the Court said, was that it “is consistent with the well-settled rule that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done”. More specifically, it said that “[w]hen a federal funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is made good when the recipient compensates the federal government or a thirdparty beneficiary for the loss caused by that failure”. Here, the Court said that “[p]unitive damages are not compensatory, and are therefore not embraced…”

The Court held that “[b]ecause punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it follows that that they may not be awarded in suits brought under Section 202 of the ADA and Section 504 of the Rehabilitation Act.”

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K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S,D.N.Y. May 26, 2022) Dispute: Whether the parent proved that its claim was a violation of the ADA. Conclusion: The Court held that the parent did not prove that its claim was a violation of the ADA. Basis of the Court’s Decision: The parent “request[ed] a declaration from the Court that the [district’s] policies, practices, and procedures regarding implementation of [IHO decisions] are illegal and/or invalid and have discriminated against [the student] and similarly situated students under the Americans with Disabilities Act (“ADA”)…”. The Court found that the parent offered no “evidence in support of that request”. The Court went on to say that “[t]he standards for claims under the ADA and under Section 504 of the Rehabilitation Act are essentially the same”. The Court continued that “[b]ecause the ADA and Section 504 address discrimination against disabled students, rather than incorrect or erroneous special education treatments, as in the case of the IDEA, there must be something more than a mere violation of the IDEA … in order to show a violation of either statute in the context of educating children with disabilities”. According to the Court, “[t]hat something more is evidence that the defendant acted with bad faith or gross misjudgment”. The Court pointed out that further, “[i]ntentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE”.

Regarding this case, the Court concluded that “[t]he undisputed facts” did not “establish the requisite something more”.

The parent asserts that the district’s “exclu[sion]” of the student “from the benefits of IDEA due process proceedings and determinations violated the ADA and that the Court does not need any further showing”. The Court said that “[a]lthough the evidence does tend to show that, for each succeeding school year after an IHO determined that [the private school] was an appropriate placement, [the parent] had to initiate a due process hearing to secure that [the private school] would be determined still to be an appropriate placement and would be paid under the IDEA. [the parent] has not offered any undisputed evidence to establish that the [district] acted in bad faith or with gross negligence and that [the parent] is entitled to declaratory relief.

The Court concluded the matter by denying the parent’s motion for summary judgement under the ADA.

DAMAGES Doherty v. Bice, 2024 WL 2096705, No. 23-1217 (2d Cir. May 10, 2024) Issue: ADA – damages for emotional distress Dispute: Were emotional distress damages an appropriate remedy for an ADA case.

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Conclusion: An ADA case will not support emotional distress damages as an appropriate remedy.

Key Take Away: Even if successful, a student may not receive emotional distress damages for an ADA lawsuit.

Reasoning: The student in this matter has Asperger’s Syndrome and has graduated from the college he had attended. Previous to that, and as a result of a dispute between the student and other students, a “non-contact order” was issued by the school against the student. Thereafter, asserting a violation of the ADA, the student sued the school for, among other things, emotional distress damages.

The district court, among other things, concluded that the student “failed to state a claim for damages because emotional distress damages are not available under Title II of the ADA after the Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022)”, which had found that a violation of the Rehabilitation Act of 1973 does not support a claim for emotional distress damages. Regarding this, the Court pointed out that the statute at issue, the Rehabilitation Act, was “spending clause legislation,” that the interpretation of the scope of damages in such a statute was “subject to the usual contract remedies in private suits” and that emotional distress damages were not the usual remedy for violations in contract.

The Court of Appeals upheld the district court. It held that “[b]ecause recovery for emotional distress damages is unavailable under the Rehabilitation Act’s cause of action, … such recovery is likewise unavailable under Title II of the ADA, which explicitly borrows the remedies, procedures, and rights of the Rehabilitation Act. Further, because of this explicit connection, the Court also said that, contrary to the student’s argument, it made no difference that the ADA was not spending clause legislation.

ELIGIBILITY A.J.T. v. Osseo Area Sch., Independent Sch. Dist. No. 279, No. 24-249, 2025 WL 1657415 (U.S. June 12, 2025) Issue: Americans with Disabilities Act - Eligibility Dispute: Whether parents bringing a claim under the ADA relating to educational services need to make a “heightened” showing of bad faith or gross misjudgment when compared to a violation of the ADA in other contexts in order to go forward.

Conclusion: The Supreme Court decided that parents bringing a claim under the ADA relating to educational services do not need to make a heightened showing of bad faith or gross misjudgment when compared to a violation of the ADA in other contexts in order to go forward.

Key Take Away: In an ADA case relating to educational services, a district may not hold a parent to a higher standard when compared to other ADA contexts. In this case, the Supreme Court 23

decided that the case against the district could not be dismissed because the parent had not claimed that the district had acted in “bad faith” or with “gross misjudgment”.

Reasoning: The student in this case suffers from a rare form of epilepsy that severely limits her physical and cognitive functioning.

The student has seizures in the morning so frequently that she is unable to attend school before noon. However, the student is alert and able to learn from noon until about 6 pm.

When the student moved into the district and began to attend district schools, the district did not provide for evening instruction in her IEP which had been requested by her parents, and which had been provided by the previous school district. As a consequence, during the period 2015 to 2018, the student received 4.25 hours of school instruction per day compared to the typical 6.5-hour school day for other students. In 2018, when the student was to attend middle school, the district proposed further cutting back the length of her school day. The district rejected the parents’ requests that she receive the same amount of instruction that she had received in elementary school.

The parents filed a complaint with the state administrative agency that the district was violating the IDEA, and an impartial hearing was held. The “ALJ” concluded that the district’s actions in refusing to provide after-hours instruction denied the student a FAPE. The ALJ ordered the district to provide several hundred hours of compensatory education and to add to her IEP home instruction from 4:30 pm to 6 pm on school days.

The district appealed the ALJ’s decision to Federal District Court in Minneapolis. The District Court for the District of Minnesota agreed with the ALJ. The District Court’s decision was upheld by the Eighth Circuit Court of Appeals.

The parents also filed a lawsuit that the district’s conduct violated the student’s rights under the ADA and Section 504. They requested a permanent injunction, reimbursement for certain costs, and compensatory damages. The District Court dismissed the parents’ lawsuit because the parents had not shown that school officials “acted with bad faith or gross misjudgment”.

The parents appealed but the Eighth Circuit Court agreed with the District Court. The Appeals Court said that “when alleged ADA and Section 504 violations are based on educational services for disabled children, a school district’s simple failure to provide a reasonable accommodation [was] not enough to trigger liability”. The Eighth Circuit Appeals Court said that the parent must prove “more” than “mere noncompliance with the statutes”. The “something more” the Eighth Circuit Court of Appeals said, was to show that school officials acted with either bad faith or gross misjudgment.

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Both the District Court and the Eighth Circuit Court pointed out that the above standard “applies uniquely in the educational services context and is a more demanding showing compared to other sorts of disability discrimination claims”.

Upon review, the United States Supreme Court asked about the rationale for a different standard in the educational services context than in other contexts. The Supreme Court concluded that “ADA and Rehabilitation Act claims based on educational services should be subject to the same standards that apply in other discriminatory contexts”. Although it was not addressed, it appears that the Supreme Court assumed that the prevailing standard in most but not all lower courts under Section 504 and the ADA in other ADA and Section 504 contexts were “no intent” for injunctive relief and “deliberate indifference” for money damages. “[O]ther discriminatory contexts” would include ADA and 504 claims relating to, for example, public transportation, prisons, etc.

The Supreme Court said that “[n]othing in the text of Title II of the ADA or Section 504 of the Rehabilitation Act suggests that such claims should be subject to a distinct, more demanding analysis”. The Supreme Court further said that “[t]he substantive provisions of both Title II and Section 504, by their plain terms, apply to qualified individuals with disabilities”. The Supreme Court went on and stated that “[t]here is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims”. Finally, the Court said that “the applicable remedial provisions” do not “suggest any such distinction”.

The Supreme Court reversed the Eighth Circuit’s decision and decided in favor of the student.

Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024) Issue: Title II of the ADA & Section 504 of the Rehabilitation Act of 1973 -- eligibility Dispute: Whether the parents and students set forth a cause of action of violations of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the ADA. Conclusion: The Court concluded that the parents and students did not establish a cause of action of violations of Section 504 and Title II of the ADA. Key Take Away: A parent can show that a district violates Section 504 and Title II of the ADA if, among other things, the parent can show that the district was “deliberately indifferent” to the harassment. Deliberate indifference can be assigned (imputed) to teachers and administrators for students’ peer-on-peer harassment when those teachers or administrators display deliberate indifference to the underlying harassment, where such harassment is motivated by discrimination.

In this case, the Court found that the district was not deliberately indifferent to harassment when it was unaware that general education students took pictures and videos of special education students in the boys’ bathroom with their pants down or, when it did know such a thing, it took 25

prompt steps to strengthen the protocols around the supervision of special education students in the boys’ bathroom so as to ensure that similar acts affecting the students’ security and privacy would not recur.

Reasoning: This case concerns three school age children eligible for special education programs and services as students with autism and their parents.

Starting in the fall of 2021 the students were verbally and sexually harassed by general education students who took photographs of them in the bathroom while their pants were down. 2On March 11, 2022, a student who was not a party to the suit told special education staff that students had taken pictures and videos of two of the students in the bathroom with their pants down. On March 14, special education staff implemented new procedures for supervision in the boy’s bathroom to prevent similar incidents in the future. On March 17, 2022, a special education teacher notified the students’ parents about the harassment. On March 24, district special education staff and a police officer assured one of the parents that the inappropriate behavior and harassment would stop and that there were new bathroom protocols to prevent similar bullying incidents in the future. One parent received an anonymous text message and screen shots of pictures of the three students. He provided that cellphone to the police and district employees for investigation. During the district’s investigation, around March 21, 2022, three students confessed in writing to district staff stating that they were involved in the March 11 incident. However, district staff did not inform the parents of the students who were subject to the harassment. The district staff did not believe that the written confessions were “sufficient enough evidence” to share with the parents. In their complaint, the parents argue that those students were not punished for their actions on March 11.

On April 6, 2022, the Board of Education agreed to hire a third-party firm to investigate the incident. The firm began its investigation in July of 2022. The report found that the district took prompt steps after receiving the Whistleblower’s report of misconduct on March 11 to prevent similar incidents in the future.

The parents filed their initial complaint on June 1, 2023, and an amended complaint on October 12, 2023. The amended complaint included claims of violations of Section 504 and of Title II of the ADA. The district filed a motion to dismiss.

The District Court dismissed the parents’ Section 504 and Title II ADA claims.

The District Court stated that to make a viable claim under Section 504 and Title II of the ADA a person must demonstrate that: As indicated below, the alleged facts did not indicate that any district employee “was aware of such bullying until Friday, March 11, 2022” and that after that incident special education staff “took prompt steps to strengthen the protocols around the supervision of special education students in the boys’ bathroom so that similar acts affecting their security and privacy would not recur”.

2

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1. they are a qualified individual with a disability, 2. the defendant is subject to Title II of the ADA or Section 504, and 3. they were denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities or was otherwise discriminated against by the defendant because of her disability”.

The District Court also pointed out that in cases brought under Section 504 and Title II of the ADA for harms caused by school bullying, district courts in the Second Circuit have used a three-part test to determine whether schools are liable for peer-to-peer harassment. See Davis v. Monroe, 526 U.S. 629, 650 (1999). The District Court pointed out that under that test, individual defendants can be liable for peer-to-peer harassment even if their actions are not motivated by discrimination if those defendants displayed deliberate indifference to the underlying harassment, where the harassment is itself motivated by discrimination. The District Court pointed out that to establish that a defendant was deliberately indifferent, a plaintiff must show that 1. they were harassed on the basis of their disability; 2. the harassment was so severe, pervasive, and objectively offensive that it altered their education; 3. the school district had actual notice of the disability-based harassment; and 4. the school was deliberatively indifferent to it.

The District Court did not address the first three prongs because it concluded that the facts in the complaint were not enough to satisfy the fourth prong. Therefore, the District Court concluded that the case did not rise to the level of a Section 504 or Title II of the ADA violation.

With respect to deliberate indifference, the District Court pointed out that “[d]eliberate indifference to bullying under Davis is found where the district’s response was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur”.

In this case, the District Court concluded that the parents did not allege any facts that supported a claim that the district and its staff were deliberately indifferent to the bullying experienced by the students. The Court used the fact that the district responded quickly after learning of the bullying and the strengthened protocols to prevent future incidents to support their decision that there were no facts to support a claim of deliberate indifference.

Even though the District Court agreed with the third-party investigation report that “the investigation into which students were responsible for the March 11 incident was deficient, particularly as to the failure to properly document investigative steps, the extent to which the investigation lacked coherent leadership, and the manner in which investigative findings were 27

(or were not) reported to key constituencies”, the District Court said that those deficiencies did not meet the requirements of showing deliberate indifference. Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it; allegations that the District Court said, were not a part of the amended complaint. Moreover, the District Court added that while the parents could have plausibly alleged “negligence” or even “incompetence in conducting the investigation, they have not plausibly alleged that the district did so little to safeguard the [students] so as to give rise to a reasonable inference that it intended for the harassment to occur”.

The District Court dismissed the parents’ and students’ Section 504 and Title II of the ADA claims.

APPEALS TO THE STATE REVIEW OFFICER (SRO) EVIDENCE Application of a Student with a Disability, Appeal No. 23-102 at pp. 18-19 (July 31, 2023) Dispute: Whether the SRO should accept additional evidence?

Conclusion: The SRO determined that he would not accept the proffered additional evidence.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

“Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO’s decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision.” “The factor specific to whether the additional evidence was available or could have been offered at the time of the impartial hearting serves to encourage full development of an adequate hearing record at the first tier to enable the IHO to make a correct and well supported determination and to prevent the party submitting the additional evidence from withholding relevant evidence during the impartial hearing, thereby shielding the additional evidence from cross-examination and later springing it on the opposing party, effectively distorting the State-level administrative review and transforming it into a trial de novo … On the other hand, both federal and State regulations authorize SROs to [accept] additional evidence if necessary, and SROs have accepted evidence available at the time of the impartial hearing when necessary”.

Here, “the parents did not disclose a transportation contract … prior to the start of the impartial hearing”. “On the last day of the impartial hearing, the father testified that he [] could not recall 28

whether or not there was a separate transportation agreement …”. “[T]he parent’s attorney then stated that he had no additional questions for the father and the IHO noted the completion of his testimony …”. “[T]he parent’s attorney [then] attempted to refresh the father’s recollection with a copy of the transportation agreement … but the district objected … The IHO sustained the objection because the father had completed his testimony and, the transportation agreement was not contained in the parents’ prehearing disclosures to the district. … The district [had gone] even further and [had] obtained a signed subpoena from the IHO that was solely dedicated to transportation issues including the transportation agreement(s) … and there is no evidence that the parents complied with the subpoena”.

The SRO held that “[w]here as here, the parent could not recall if there was a transportation agreement…and appeared confused about when the student had surgery and began being transported to [the private school] by the [transportation service] … and there is a notable lack [of] evidence of compliance with a subpoena or the disclosure rules … the parents’ excuse that the document should be now admitted as additional evidence on appeal because it was inadvertently omitted lack[ed] any merit at all”.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Whether the SRO should accept additional evidence.

Conclusion: The SRO determined that she would accept some additional evidence and denied the receipt of other additional evidence.

Basis of the SRO’s Decision: “Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer’s decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision”.

“The factor specific to whether the additional evidence was available or could have been offered at the time of the impartial hearing serves to encourage full development of an adequate hearing record at the first tier to enable the IHO to make a correct and well supported determination and to prevent the party submitting the additional evidence from withholding relevant evidence during the impartial hearing, thereby shielding the additional evidence from cross-examination and later springing it on the opposing party, effectively distorting the State-level administrative review and transforming it into a trial de novo”. “However, both federal and State regulations authorize SROs to seek additional evidence if necessary, and SRO’s have accepted evidence available at the time of the impartial hearing when necessary”.

In this case, the parents, in part, requested to submit as additional evidence “the results of the student’s performance on the fifth grade State ELA exam, along with correspondence with the 29

IHO requesting that the IHO accept the exam results in evidence”. “The district has offered documents related to evaluations completed after the issuance of the IHO’s decision in this matter and a February 2, 2023 CSE determination that the student was not eligible for special education”. In response to the district’s request, “the parents submit[ed] additional documents that they assert are required to complete the information considered by the February 2023 CSE”.

The SRO determined to exercise her discretion to accept additional evidence from the parents of the results of the student’s performance on the fifth grade State ELA exam and related correspondence to the IHO. The SRO pointed out that “the parents [offered] the other document at the time of the impartial hearing” and that “the parents’ proposed exhibit is relevant to fashioning relief … and is therefore necessary in rendering a decision in this matter”.

“On the other hand, [the SRO concluded that] the district’s proposed additional evidence and the parents’ further additional evidence in response, is not necessary to render a decision in this matter as it all pertains to a CSE meeting that took place after the conclusion of this proceeding and which may be the subject of a subsequent due process complaint notice if the parents disagree with the February 2023 CSE’s determination”.

Application of the New York City Department of Education, 20-108 (8/10/20) Conclusion: The SRO used 8 NYCRR §279.10(b) (said section “permitting a State Review Officer to seek additional evidence if he or she determines that such additional evidence is necessary”) to request additional information from the district.

Basis of the SRO’s Decision: The SRO requested additional evidence from the district regarding “whether it conducted a CSE meeting for the student for a (subsequent) school year, and if so, to provide a copy of the IEP.” Upon the receipt of the requested information the SRO learned that “multiple assessments of the student were conducted” “that were not a part of the hearing record and were not available to the IHO”. Based in part on this information, the SRO decided that it would not consider prospective relief in the case but would “limit review of [the] matter to remediation of past harms that” were explored through the development of the underlying hearing record.

PROCEDURES Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Parents assert that they were not properly served. District asserts that proper service should be concluded.

Conclusion: The SRO held that the parents were not properly served and dismissed the district’s appeal.

Basis of the SRO’s Decision: The practice regulations before the Office of State Review at 8 NYCRR § 279.4(c) provides that in circumstances where the petitioner is a board of education, 30

personal service on respondent parent is made by delivery of a copy of the notice of petition for review and petition for review to the parent. The practice regulations provide alternative ways to effectuate proper service if, upon diligent attempts, service cannot be made as required, including as directed, by a State Review Officer (SRO) (see 8 NYCRR § 279.4(c)).

In this case, the district served the notice of petition for review and the petition for review by overnight mail to the attorney for the parent. Petitioner district’s petition for review did not comply with the length requirements of the practice regulations before the Office of State Review and was returned by that office. The district thereafter served and filed an amended notice of request for review and request for review upon counsel to the parent.

The SRO held that the district did not properly serve the parent. The SRO referenced the parent’s affidavit and concluded, among other things, that the parent was not personally served.

Regarding the district’s claim that the parent was not prejudiced, the SRO advised that lack of prejudice did not nullify the requirement for proper service. The SRO pointed out that the district did not deny that it failed to make service as required. Regarding the district’s claim that parents’ counsel had consented to service by delivery to the parent’s attorney, the SRO pointed out that such allegation was conclusory. Additionally, and elsewhere in the decision, the SRO referenced an affidavit of the parent that he did not waive his right to be served or authorize anyone else to accept service.

The SRO concluded that the district failed to offer any explanation for its failure to properly serve the parents and that if it was unable to comply with this requirement, it was obligated to explain why it could not do so and, if necessary, pursue alternative service as provided for by the practice regulation including as required by a State Review Officer.

With respect to all of the above, the SRO concluded that “[g]iven the absence of any showing that the district served the parent with the request for review, obtained an agreed upon waiver of personal service, or obtained permission from an SRO for service by means other than service upon the parent it is an inescapable conclusion that the district failed to effectuate proper service…either pursuant to Part 279 or in another manner authorized by an SRO… and that the district’s appeal [should be] dismissed”

SCOPE OF REVIEW T.C. v. William Floyd Union Free Sch. Dist, 774 F.Supp.3d 583 (E.D.N.Y. 2025) Issue: Appeals to the State Review Officer and to Federal and State Courts – scope of review.

Dispute: Should the parent’s concern regarding adaptive physical education be considered by the SRO and the District Court.

Conclusion: The District Court determined that the parent’s concern about adaptive physical education should not be considered by the SRO and by the District Court.

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Key Take Away: A parent needs to remember that unless the parent includes a concern in the due process complaint or unless the district “opens the door” (actively cooperates in the discussion of the issue) to the consideration of that concern at the impartial hearing, the concern will not be considered by the IHO or reviewed by the Courts.

Reasoning: The student is 15 years old and has been diagnosed with Specific Learning Disorders and Attention Deficit/Hyperactivity Disorder.

The CSE met in May 2021 for an annual review for the 2021-2022 school year. The CSE did not make any recommendations regarding the student’s access to adaptive physical education and that related service did not appear on the student’s IEP. On August 16, 2021, and for reasons unconnected with adaptive physical education, the parent advised the district by letter that she disagreed with the CSE’s recommendation, that she was enrolling the student in a private school, and that she was seeking tuition and transportation costs due to “substantive and procedural denials” of a FAPE. As a result, the district scheduled another CSE meeting in September 2021. Adaptive physical education was not discussed in the meeting and did not appear on the resulting IEP. The parent wrote the district again on December 3, 2021, which led to a further CSE meeting in January 2022. Nor did that CSE meeting include any discussion on adaptive physical education and that related service again did not appear on the resulting IEP. For other reasons, the parent continued to be unsatisfied with the outcome of the meeting.

At some point and by mistake, the district issued a proposed school schedule for the student which included adaptive physical education.

The parent filed a due process complaint on December 6, 2021. The complaint said that the district failed to provide the student with a FAPE. The due process complaint did not raise any issues regarding adaptive physical education. The impartial hearing began in March 2022 and ended in April 2022. During the impartial hearing the parent asserted that the district had inappropriately placed the student in adaptive physical education. The district did not address this issue other than having one of its pieces of evidence be the mistakenly prepared class schedule. However, the IHO considered the question and found that the district had inappropriately assigned the student to adaptive physical education. Because of this and two other issues, the IHO concluded that the May 2021 CSE did not provide the student with a FAPE. The district appealed to the SRO. The district said that the IHO’s conclusion that the student was denied a FAPE because of his inappropriate placement in an adaptive physical education class should be reversed. The district argued that since this issue was not raised in the due process complaint, the IHO had improperly considered that issue. The parent disagreed and said that the appropriateness of adaptive physical education should be considered. The SRO concluded that 32

because the parent had failed to raise the adaptive physical education issue in the due process complaint, that issue was not able to be considered at the impartial hearing, The SRO also considered whether, during the impartial hearing, the district had “opened the door” to consideration of that issue at the impartial hearing. Here, the SRO pointed out that the adaptive physical education issue was raised by the parent at the hearing and that the parent’s concern was not responded to by the district. Based on this, the SRO concluded that the district did not open the door to consideration of the issue. The SRO also said that the adaptive physical education recommendation was not included in the May 2021 IEP and was mistakenly included in the student’s proposed class schedule.

The parent began a lawsuit in the United States District Court for the Eastern District of New York in November 2022. The parent argued that the appropriateness of adaptive physical education for the student should have been considered by the SRO. In particular, the parent argued that the inclusion of adaptive physical education in the student’s program reflected what was “available” by the district and not what the student needed to be successful, She said that the district “opened the door” to consideration of this issue by introducing into evidence at the impartial hearing the exbibit which showed that the student would be participating in adaptive physical education.. The parent also cited law to the effect that “the waiver rule” is not to be mechanically applied. The district said that the District Court should accept the reasoning of the SRO that the adaptive physical education issue could not be considered.

The District Court concluded that the SRO was correct that the adaptive physical education issue should not have been considered at the impartial hearing because that issue was not raised in the due process complaint and also because the district did not “open the door” to its consideration. The District Court concluded that this issue was beyond the scope of what could be considered by the IHO and therefore also beyond the scope of what issues should be considered by the District Court. The District Court also agreed with the SRO that even if the issue regarding adaptive physical education had been properly raised, the IHO’s conclusion should be reversed. Here, the District Court pointed out that adaptive physical education was not even in the May 1, 2021, IEP and was included in the student’s proposed class schedule by mistake. The District Court said that in that event the IHO’s conclusion would have been based on “speculation” that the district would not have adhered to the IEP. Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) Issue: Appeals to the State Review Officer – scope of review Dispute: Was the issue of whether the student should have been provided with a transportation nurse to go with him to and from school within the scope of review of the State Review Officer’s decision.

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Conclusion: The issue of whether the student should have been provided with a transportation nurse to go with him to and from school was outside the scope of review of the State Review Officer’s decision.

Key Take Away: If a parent wishes to raise an issue before an Impartial Hearing Officer or a State Review Officer, the issue must be first included in the due process complaint or the district must “open the door” to the Impartial Hearing Officer’s consideration of the issue.

Reasoning: The student has been diagnosed with cerebral palsy and a seizure disorder. He cannot speak or walk. The student needs help in all domains of mobility and activities of daily living. In July 2018, the parents filed a due process complaint. In a decision in October 2019, the Impartial Hearing Officer (IHO) concluded that the district had denied the student a free appropriate public education because it had recommended a paraprofessional to accompany the student to and from school instead of a transportation nurse. The State Review Officer (SRO) did not agree with the opinion of the IHO. The SRO pointed out that the issue of the need for a transportation nurse to go with the student to and from school was not included in the due process complaint as required by the regulations. Further, the SRO pointed out that the district did not open the door to that issue during the impartial hearing.

The District Court found that the SRO had shown “thorough and sound reasoning” as to why the issue of the transportation nurse was outside the scope of the proceeding.

Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024) Issue: Appeals to State Review Officer – Scope of Review Dispute: Did the parent forego the argument that the student was denied a free appropriate public education because the student was placed in a school that was not wheelchair accessible.

Conclusion: The Court of Appeals concluded that the district court correctly determined that the parent waived the argument that the student was denied a free appropriate public education because the parent’s due process complaint made no mention of this argument.

Key Take Away: A parent must raise an argument in the due process complaint in order for the argument to be considered.

Reasoning: The parent claimed that the student was denied a “free appropriate public education” because the student was placed at a wheelchair inaccessible school. The district court concluded that the parent “waived” this argument by not raising it in her due process complaint. Upon appeal to the Court of Appeals, that Court concluded that the district court was correct because the parent’s due process complaint made no mention of wheelchair accessibility.

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Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the parent’s assistive technology and extended school year claims were barred because they were not raised in the parent’s due process complaint (DPC).

Conclusion: The Court affirmed the SRO’s decision that the parent’s assistive technology and extended school year claims were barred because they were not raised in the parent’s DPC. Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserted that the student’s “IEP had two critical omissions: assistive technology devices and services and 12-month extended year services”. The Court agreed with the SRO that these two claims were “procedurally barred because [the parent] had failed to include the arguments in her DPC”.

Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) Dispute: Whether the district “opened the door” to considerations relating to the student’s management needs, behavioral needs, and annual goals.

Conclusion: The SRO concluded that the district opened the door to considerations of management needs and annual goals but not to the student’s behavioral needs.

Basis of the SRO’s Decision: In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a highly structured learning environment and had needs relating to behavior management, language development, and social skills.

“Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing”. “Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees”, “or the original due process complaint notice is amended prior to the impartial hearing per permission given by the IHO at least 5 days prior to the impartial hearing”.

“In the due process complaint notice [here], the only discernible issues raised by the parent related to the district’s failure to deliver a copy of the IEP, the parent’s inability to visit the assigned school, the appropriateness of the special class recommendation, the sufficiency of the evaluative information, and CSE composition”. However, “the IHO rendered her decision on several additional issues, including an analysis of the recommended management needs and annual goals” as well as the student’s behavioral needs.

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The SRO further pointed out that “[w]hen a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through its questioning of its witnesses, opened the door to the issue under the holding of M.H. v, New York City Department of Education, 685 F.3d 217, 250-51 (2d Cir 2012).

Upon review of the record, the SRO found that the district’s attorney’s questioning of its special education teacher, who was the district representative at the CSE meeting, “opened the door” to the appropriateness of the student’s annual goals and management needs. In particular, the SRO pointed out that a relevant “line of questioning was designed to elicit testimony in support of [the district’s] position that the evaluative information relied on by the CSE was sufficient to identify the student’s needs and [to] develop appropriate management needs and annual goals and as further support for a finding that the special class recommendation was appropriate” The SRO also pointed out that the district included these issues in its closing brief.

With respect to whether or not “the district opened the door to any allegations regarding the student’s behavioral needs”, based on the review of the record, the SRO concluded that it did not.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Whether the question of hearing education services was within the SRO’s scope of review.

Conclusion: The SRO concluded that the question of hearing education services was outside the SRO’s scope of review.

Basis of the SRO’s Decision: “State regulations require that parties set forth in their pleadings a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review and further specify that any issue not identified in a party’s request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer. 8 NYCRR 279.8(c)(2), (4) (emphasis added).”

In this case, “the due process complaint notice included an allegation that the [IEP] was inadequate based on its failure to include a recommendation for hearing education services”. “[T]his issue was not addressed by the IHO.” “On appeal, the parent does not advance any argument that the IHO failed to make such determination or argue that the district’s failure to recommend hearing education services denied the student a FAPE.” The parent does not argue under a separately numbered issue in the pleadings “that the lack of hearing education services 36

denied the student a FAPE or that the IHO erred in [not] addressing the issue”. The parent sets forth under his Statement of Pertinent Facts that the CSE “did not recommend hearing education services”. The SRO said that the “passing mention” to hearing education services in the statement of facts was “not sufficient to raise the issue for review.”

The SRO concluded that “the issue of hearing education services which was raised in the due process complaint notice but not addressed by the IHO and not raised on appeal is abandoned”.

B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) Dispute: Whether an issue determined by an IHO which is not appealed to the SRO is final and binding upon the parties.

Conclusion: The Court held that in circumstances where an issue determined by the IHO is not appealed to the SRO, the IHO’s determination with respect to that issue is final and binding upon the parties and may not be considered by the SRO. Basis of the Court’s Decision: The student in this case has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyper-Activity Disorder, reading and writing impairments, and chronic kidney disease. The student is eligible for special education programs and services as a student with a disability and in particular a student with another health impairment.

Among other things, the parents’ due process complaint notice asserted that the student was denied a FAPE during the 2018-19 school year because of bullying. The IHO agreed but did not award the parents any remedy3. The parents appealed a number of IHO determinations to the SRO. They did not, however, appeal to the SRO the IHO’s determination not to award any remedy with respect to the 2018-19 school year. As a consequence, the SRO did not review that determination but found the IHO’s determination final and binding upon the parties and not able to be reviewed by the SRO. As part of its litigation before the Court, the parents now assert “that they are entitled to a remedy for the bullying that took place during the 2018-19 school year.

From the Court’s decision it appears that this was because the parents’ due process complaint notice did not seek a remedy with respect to the 2018-19 school year. It is not clear whether the parents enrolled the student in a private school when he left the district toward the end of the 2018-19 school year. If the student had attended a private school during that period the parents would have been eligible to seek a remedy of tuition reimbursement.

Additionally, because one component of a successful bullying claim under T.K. v. New York City Dep’t of Educ., 779 F.Supp. 2d 289, 316 (E.D.N.Y. 2011) is that the bullying substantially restricts the student’s education opportunities, the parents could have sought compensatory education as a remedy. Moreover, in circumstances where bullying has denied the student a FAPE and the district does not appropriately respond, which could be a subject of a due process complaint notice and the remedies under the IDEA would be applicable. Note also here that bulling can serve as the basis of a violation of Section 504 and the ADA and the remedies for such claims would be available.

3

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The Court first advised that in questions of law in IDEA cases, it is not required to give any deference to prior administrative determinations. The Court therefore reviewed the question of law and found that it agreed with the SRO’s conclusion.

The Court pointed out that IDEA requires that “any party aggrieved by the findings and decision of an initial administrative hearing to be able to appeal such findings and decisions to the State administrative agency”. See 20 U.S.C. 1415(g)(1). The Court went on to point out that the applicable federal regulations “require that any decision not appealed to the SRO is final upon the parties”. See 34 CFR 300.514. See also 8 NYCRR 200.5(j)(5)(v). The Court concluded that because the IHO’s determination not to award a remedy regarding the 2018-19 school year was not appealed to the SRO that issue was “waived”.

Application of the Dep’t of Educ., Appeal No 21-184 (Oct. 27, 2021) Dispute: Which claims are properly before the State Review Officer (SRO).

Conclusion: A part of the Impartial Hearing Officer’s (IHO) decision was outside of the SRO’s review.

Basis of the SRO’s Decision: State Regulations covering practice before the Office of State Review set forth that any issue not identified in a party’s request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer. Additionally, an IHO’s decision is final and binding upon the parties unless appealed to a State Review Officer.

Here, the district did not cross-appeal from the IHO’s determinations that the parents’ unilateral placement was appropriate and that equitable considerations weighed in favor of granting the parents’ requested relief.

Therefore, the above IHO’s findings have become final and binding on the parties and will not be reviewed on appeal.

Application of a Student with a Disability, Appeal No. 20-083, (June 26, 2020) Dispute: Which claims are properly before the State Review Officer (SRO).

Conclusion: Two of the claims raised by the parent in the due process complaint notice were not raised in the request for review before an SRO and therefore are outside of the scope of the SRO’s review. Additionally, one claim that was raised in the request for review before the SRO was not raised in the due process complaint notice, and therefore, was also outside of the scope of the SRO’s review. Further, the parent includes claims asserting that the district violated Section 504 and the ADA, which the SRO held were outside its jurisdiction.

Basis of the SRO’s Decision: State Regulations governing practice before the Office of State Review (OSR) set forth that any issue raised by a parent in the due process complaint notice but not identified in a party’s request for review, answer, or answer with cross-appeal before an SRO 38

are deemed abandoned. Additionally, and with respect to the second matter, State Regulations governing practice before an SRO also set forth that any issue not raised in the parent’s due process complaint notice may not be raised for the first time on appeal to an SRO. With respect to this, the parent also did not seek the district’s agreement to expand the scope of the impartial hearing or file an amended due process complaint notice to add the claim, Furthermore here, as a matter of law, the district did not “open the door” to the claim by raising evidence as a defense to a claim that was not identified in the due process complaint notice. With respect to the parent’s 504 and ADA claims, State law, supported by relevant case law, limit the jurisdiction of a State Review Office to consider matters under the IDEA or its counterpart in State law and regulations.

Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) Dispute: Which claims are properly before the State Review Officer (SRO).

Conclusion: Several of the parent’s claims were outside of the SRO’s review.

Basis of the SRO’s Decision: The parent raised a number of claims in her due process complaint notice that were not addressed by the Impartial Hearing Officer (IHO) and the parent did not specifically appeal from the IHO’s failure to address those claims. With regard to this, State Regulations covering practice before the Office of State Review set forth that “any issue not identified in a party’s request for review, answer, or answer with cross-appeal are deemed abandoned and will not be addressed by a State Review Officer”

APPEALS OF FEDERAL AND STATE COURTS DEFERENCE – HEARING OFFICER Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: appeals to federal courts – deference (reliance on) IHO and/or SRO Dispute: Should the District Court have deferred to the SRO. Conclusion: The Second Circuit concluded that the District Court correctly deferred to the SRO. Key Take Away: Parents should remember that generally a District Court “must” defer to the decision of an SRO when compared to that of an IHO; however, where the IHO and SRO reach different results, the Court “must” defer to the SRO unless that decision is “inadequately reasoned” in which case a “better reasoned” IHO decision may be considered.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

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The CSE met in March 2021 and August 2021 and developed an IEP for the student for the 20212022 school year. After the district notified the parents of the student’s assigned school, the parent reenrolled the student at the private school that the student had been attending since March of 2020.

The parents submitted a due process complaint in October 2021. The notice asserted that the district denied the student a FAPE for a number of reasons. After an impartial hearing, at which a number of persons testified, including a private evaluator for the parents, the Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents. It should be noted that the IHO’s decision did not “explain the connection among its finding of fact, its assessment of relevant evidence and its conclusion that [the student] was denied a FAPE”.

The parents appealed the case to a State Review Officer (SRO). In a 27-page decision, the SRO decided that the district offered the student a FAPE and overturned the decision of the IHO. The SRO’s decision “outlined the case’s procedural history; thoroughly summarized [the student’s] IEP; explicitly considered [the parents’] procedural and substantive objections; assessed with [references] to the record, relevant evidence”, including that from school psychologists, the private school, and the parents’ evaluator as well as documents; and “explained its conclusions”.

With particular regard to the testimony of the parents’ evaluator that the district’s assigned school was not appropriate, the SRO concluded that it should be given little probative weight because it was “rife with generalizations and unsupported hypotheticals about other classrooms, different years, and safety concerns, and stereotypes of students with different disability classifications, which were particularly unconvincing given that [the evaluator] did not conduct an observation of the proposed district classroom or of the student”.

The parents then filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to rule in their favor. The District Court ruled in favor of the district. It first decided that the SRO’s decision – as opposed to that of the IHO — was entitled to “deference” (should be relied on). The District Court also concluded that the district provided the student with a FAPE and that therefore the parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

After a request that it change its mind, which was denied by the District Court, the parents appealed the decision to the United States Court of Appeals for the Second Circuit. The parents argued that the District Court erred when it concluded that the SRO’s decision warranted deference and said that the District Court should have deferred to the IHO. The parents argued that, as the finder of fact, the IHO was “in the best position to assess the relevant facts and witnesses” and issued a “well-reasoned” opinion based on “the weighing of that evidence”.

The Appeals Court disagreed. It pointed out that generally, the district court “must defer to the final decision of the state authorities, that is, the SRO’s decision”. Further, where the IHO and 40

SRO reach different results “a court must defer to the SRO’s decision unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead”.

The Appeals Court concluded that the SRO’s decision was “reasoned and supported by the record” and concluded that the District Court correctly gave the SRO’s decision deference. The Appeals Court further said that “to the extent that [the parents] contend that the IHO decision is better reasoned than the SRO decision, such argument was “unavailing”.

The Appeals Court upheld the deference given to the SRO’s decision by the District Court.

Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) Issue: goals, deference Dispute: Were the goals set forth in the IEP appropriate for the student’s needs.

Conclusion: The student’s goals set forth in the IEP were appropriate for the student’s needs.

Key Take Away: The Circuit Court stated that, although some of the IEP goals were not a perfect match to the student’s needs, IDEA requires deference to the expertise of administrative officers.

The student’s teacher wrote the goals and they were deemed appropriate in light of the student’s needs.

Reasoning: The student in this case has received special education as a student with multiple disabilities. The student attended special education public school from 2006 until January 2020, at which time the parents unilaterally placed him at a private school.

The parents filed a due process complaint notice on April 29, 2020. Among other things they challenged the goals set forth in the 2019-2020 IEP. Among other things, the IHO dismissed the parent’s claim that the 2019-2020 goals resulted in a finding that the IEP was insufficient. On appeal, “the SRO determined that most of the goals on [the student’s] IEPs were appropriate for his instructional level, though some were not a perfect match”. Regarding this, “[t]he SRO acknowledged that the evidence showed that as compared to the 2018 IEP, the 2019 IEP contained two goals that were somewhat below the student’s instructional level and one goal that was likely too ambitious”. “However, … the SRO concluded that these adjustments in goals were appropriate because they were developed by the student’s then-current teacher and providers and the evidence indicated that the student’s responsiveness was inconsistent and that changes in the goals were needed”. “[The parents] … brought suit in the district court seeking review of the SRO’s determination.

Regarding goals, the parents asserted that “the SRO’s conclusion [was] not entitled to deference

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because it illogically concluded that the goals were appropriate despite acknowledging that three of the goals did not match [the student’s] skills. The district court rejected the parents’ argument.

The parents appealed to the Court of Appeals. Upon review of the district court’s decision, the Court of Appeals first pointed out that “[a]n IEP must include a statement of measurable annual goals to meet the child’s needs and make progress in the educational curriculum. See 20 U.S.C. 1414(d)(1)(A)(i)(II). The Court further pointed out that “the sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,382 (2d Cir. 2003).

The parents asserted that the SRO’s conclusion was “not entitled to deference because it illogically concluded that the goals were appropriate despite acknowledging that three of the goals did not match the student’s skills”. The appeals court concluded that the record supported the SRO’s conclusions and “defer[red] to the SRO’s conclusion that [the] goals were appropriately ambitious in light of [the student’s] circumstances. See Endrew F. ex rel Joseph F. v. Douglas Cnty Sch. Dist. RE-1, 580 U.S. 386, 402 (2017).

A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) Issue: equitable considerations, deference Dispute: Did the district court err by approving a grant of 3/8 tuition reimbursement.

Conclusion: The Circuit Court reversed the district court’s award of 3/8 tuition reimbursement and determined thar the district court, which relied on the IHO, erred as a matter of law and reversed the IHO and the district court.

Key Take Away: Once a determination is made that the district has denied the student a FAPE and that the student’s private school placement is appropriate, an IHO or SRO can only reduce a grant of tuition reimbursement as a result of “equitable” considerations. Consistent with this, an IHO or SRO cannot reduce the amount of tuition reimbursement based on a view that the private program is “partially appropriate”. Finally, an IHO or SRO must specifically cite to the particular equitable consideration that it sees as responsible for the reduction in the amount of the tuition reimbursement award. The Circuit Court pointed out that the above involve questions of law and that therefore the courts owe no deference to such determinations of the IHO and SRO. Reasoning: The student in this case is receiving special education services as a student with autism. The student was 13 years old during the 2020-2021school year.

After a determination that the student was not provided a FAPE, the parents enrolled her in a private school for the 2020-2021 school year. At the private school, the parents “opted for remote instruction for the year due to apprehensions about the COVID-19 pandemic”.

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Thereafter the parents “initiated administrative proceedings to seek reimbursement for [the student’s] education”.

The IHO found that the private school “was generally an appropriate private school placement, but awarded [the parents] only partial tuition reimbursement for the 2020-2021 school year due to the nature of [the student’s] remote instruction program”. In this regard, the student received three hours a day of remote instruction and therefore the IHO determined that the student should be reimbursed only for 3/8 of the tuition costs of the private school. The parents appealed to the SRO. “The SRO disagreed with the IHO’s finding that [the parents’] private school placement was appropriate and denied [the parents] any tuition award for the 2020-2021 school year”.

The parents appealed to the district court “seeking review of the SRO’s decision”. “The district court determined that based on [the student’s] progress and the totality of the circumstances, the IHO correctly found that [the student’s] placement addressed her needs, albeit to a limited extent and that [the parents] were entitled to partial reimbursement”.

The parents appealed to the Circuit Court “seeking review of the district court’s partial reimbursement award in lieu of a full reimbursement award”.

The Circuit Court found “that the district court exceeded its discretion in awarding partial tuition reimbursement”. In the first place, the Circuit Court concluded that “the district court did not meaningfully analyze and weigh the equities in determining the tuition award”. In this regard, it said that “the district court noted that “[the district] [did] not appear to dispute that equitable considerations favor[ed] [the parent] for the 2020-2021 school year”. However, “[t]hen [the district court accepted the IHO’s findings that the remote live sessions [the student] participated in for three hours per day was appropriate, and she was therefore entitled to partial reimbursement of tuition”. But the Circuit Court said, “the district court identified no equitable factors that weighed against [the student]”. The Circuit Court concluded that “[t]o the extent the district court reduced the award in its equitable discretion, it erred by doing so without finding that any equities weighed against [the] student”.

Second, the Circuit Court pointed out that the district court “improperly deferred to the IHO’s finding of a partial award”. The Circuit Court pointed out that the district court made its determination to reduce the student’s reimbursement as a part of its analysis of the second Burlington-Carter prong; whether or not the private school was appropriate and not as a part of its determination of the extent to which equitable considerations supported an award of tuition reimbursement. The Circuit Court said that the district court “should have determined only whether the placement was appropriate or not:”.

Finally, the Court said that once the parents pass the first two prongs of the Burlington-Carter test, there is a presumption of a full tuition reimbursement award. The Circuit Court pointed out that “[f]rom this entitlement of full reimbursement, equitable factors are considered in deciding whether to reduce or deny reimbursement”. In this case, the Circuit Court pointed out that “after 43

finding that [the parents] were eligible for relief, the IHO also found that the equities favored [the parents]”. This was improper the Circuit Court indicated, as the district court failed to point to “any equitable factors that justified this reduction”.

The Circuit Court concluded that “[c]ourts must give due weight to state administrative proceedings under the IDEA but owe no deference on issues of law”. The Circuit Court continued by saying that “[b]y inappropriately applying the Burlington-Carter test, the IHO erred in determining the partial reimbursement award. Thus, the district court then erred by relying on the IHO’s award finding”.

The Circuit Court determined that “the judgment of the district court granting in part [the parents’] motion for summary judgment is vacated and the case is remanded for further proceedings”.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Whether the IHO or the SRO should be granted deference.

Conclusion: The Court found that the SRO should be given deference.

Basis of the Court’s Decision: In this case, the student has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living. The student communicates only through vocalization, facial expressions, body movements, and eye gazing.

He is incapable of learning on a typical academic trajectory. At the time of the proceeding the student was sixteen or seventeen years old.

A CSE meeting relative to the student convened in March 2021. At that meeting, the CSE team formulated the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a specified district 75 public school, a 12-month program in a 6:1+1 special class and extensive related services in the area of occupational therapy, physical therapy, speechlanguage therapy, vision education services, and full-time individual health paraprofessional services. The IEP was amended in August 2021 to add an individual assistive technology device.

The parents requested a due process hearing in June 2021; giving notice that the district had denied the student a FAPE and of their intent to enroll the student in a private school. The parents executed a contract with the private school in July 2021.

Among other things, the IHO found that the district did not provide the student with a FAPE, and that the equities favored the parents’ request for funding. The appropriateness of the student’s private school was not disputed.

The district appealed to the New York State Review Officer (SRO). The SRO found that the district provided the student a FAPE, which ended the Burlington-Cater analysis in favor of the district.

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The Court first pointed out that it engages in an independent review of the administrative record and makes a determination based on a preponderance of the evidence. Notwithstanding this, the Court went on to say that it “must give due weight to the [State] administrative proceedings “mindful that the judiciary generally lacks the specialized knowledge and policy experience necessary to resolve … difficult issues of law and policy”. The Court further explained that when an IHO and an SRO reach differing opinions, it must defer to the final decision of the State authority (the SRO). However, in such a case, the extent of deference owed to the SRO depends on the quality of that decision. The SRO’s decision merits “greater deference when it is … a decision regarding the substantive adequacy of the IEP compared to a decision concerning whether the IEP was developed according to proper procedures, a decision grounded in thorough and logical reasoning, or a decision based entirely on the same evidence as before the district court. The Court summarized the rule as “a Court must defer to the SRO’s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead.

The Court found here that the SROs decision merited “substantial deference” as it was the final decision of the State authorities. Further, the Court found the 27-page single-spaced decision, “carefully and thoroughly” examined the record and, in particular, that the SRO analyzed a variety of documentary and testimonial evidence from the IHO hearings and the underlying CSE meetings. With respect to the expert testimony that the parents relied on to challenge the SRO’s deference, the Court said that the SRO “carefully evaluated” that evidence and “logically concluded that it should be given little probative weight”.

L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) Dispute: Should the Court defer to the SRO. Conclusion: Based on the circumstances, the Court concluded that the SRO’s decision merited deference.

Basis of the Court’s Decision: In this case, among other things, the parent argued that the SRO “was silent on all the parent’s experts all together” and “disregarded the inherent difference between fact witnesses and expert testimony”.

The Court pointed out that the SRO discussed all of the parent’s experts save one. With respect to that expert, the Court stated that the SRO decision considered “the entire hearing record”.

The Court also said that this expert’s testimony “would not change the ultimate conclusions reached by the SRO”. With respect to that parent’s expert, the Court said that he “did not offer any information on [the student’s] abilities that materially differed from what was already known”. The parent complained specifically that the expert’s opinions relating to whether an 45

FBA was required and whether a recommendation for parent training was required to be a part of the IEP was ignored. The SRO pointed out, however, that neither of these opinions were supported by the IDEA. Finally, in such circumstances, the Court said that the fact “that the SRO did not explicitly address every witness’s testimony [did] not undermine the Court’s conclusion that the SRO’s decision was generally well-reasoned and persuasive”.

Relating to the claim that the SRO “disregarded the inherent difference between fact witnesses and expert testimony’, the Court said that “the SRO did not determine the credibility of any witness, fact or expert; it simply recounted the evidence on which it relied on in totality”. The Court further pointed out “that there [was] no requirement that an SRO give more weight to expert testimony than to that of fact witnesses … and that the SRO ultimately found the fact witnesses more persuasive does not suggest that the experts were not considered”. Moreover, the Court said that “[e]ven if the SRO gave greater weight to the [d]istrict’s experts, a court cannot choose between the competing views of experts on matters of educational policy or substitute its own judgement for that of the hearing officers which it reviews”.

The IHO’s decision was one page and did not cite to references in the record or to any law. That being the case, the Court said that “[t]o the extent that the parent believes the SRO improperly deferred to the IHO’s decision, this argument is without merit”. The Court pointed out that “the SRO acknowledged the various failures of the IHO and undertook an independent review of the record … resulting in a thorough, careful, reasoned and persuasive 33-page decision. That the SRO ultimately reached the same conclusion as the IHO [did] not render the findings problematic”.

The Court concluded that “[b]ased on the evidence in the administrative record – all of which was also presented to the SRO … the SRO’s decision deserves deference from this Court.”

E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 546-47 (S.D.N.Y. 2016) Dispute: Whether and to whom deference is given.

Conclusion: The Southern District of New York summarizes relevant Supreme Court and Second Circuit cases regarding whether and to whom deference is to be given.

Basis of the Court’s Decision: Federal Courts reviewing administrative determinations under the IDEA “must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.” M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2007) (internal quotation marks omitted). The Court must also consider “any further evidence presented before the District Court by the parties” not presented to the SRO. Grim, v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). As the Supreme Court has concluded, this review of the record is “by no means an invitation to the courts to substitute their own notions of sound educational

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policy for those of the school authorities which they review.” Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

Because “the role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed,” the district court should not disturb the SRO’s decision if it is thorough, wellreasoned, and based on the record”. D.A.B. v. New York City Dep’t of Educ., No. 14-4119-CV, 630 Fed.Appx, 73, 75-76, 2015 WL 7273409 at *1 (2d Cir. Nov. 18, 2015) (citing R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189 (2d Cir. 2012); Grim 346 F.3d at 380-81; Walczak, 142 F.3d at 129); see also Gagliardo, 489 F.3d at 112-14; A.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir 2009).

By statute, reviewing courts afford such deference via application of the preponderance standard. 20 U.S.C. 1415(i)(2)(C)(iii). However, the preponderance standard does not alone capture precisely how much deference to apply, when to apply more or less, and to whom. As between the conflicting opinions of an IHO and SRO, the reviewing federal court is generally required to defer to the SRO. See M.H. 685 F. 3d at 246. Conversely, where “the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusion unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgement” Id. These inquiries ultimately translate to a review of the persuasiveness of the SRO’s decision. Id at 244. However, the persuasive inquiry “must also be colored by an acute awareness of institutional competence and role” Id. “mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy” Walczak, 142 F.3d at 129 (quoting Rowley at 206, 208).

Different types of findings are also accorded different degrees of deference. The SRO’s findings regarding the IEP’s substantive adequacy command more deference that determinations regarding whether the IEP was developed according to proper IDEA procedures. M.H. 685 F.3d at 246; see also M.P. v. Carmel Cent. Sch. Dist., No 15 CV 3432 (VB), 2016 WL 379765, at *4 (S.D.N.Y. Jan. 29, 2016) (“Courts should afford more weight to SRO determinations when they involve the substantive adequacy of an IEP.”). Determinations of appropriate methodology are accorded greater deference, while factual determinations of progress are afforded less. M.H., 685 F.3d at 246-47. Finally, more deference is due when [the] (c)ourt’s determination rests solely on the same evidence presented to the SRO. Id. R.E. v. New York City Dept of Educ., 649 F3d 167, 189 (2d 2012) Dispute: When should a Court defer to state decision-makers.

Conclusion: In IDEA cases, the role of the federal courts in reviewing state educational decisions is circumscribed; keeping in mind that a court lacks the specialized knowledge and experience 47

necessary to resolve questions of educational policy. Among other things, and as a general rule courts defer to the final decision of the state authorities (the SRO) but the deference owes to the SRO is determined by the quality of that decision and circumstances may occur where the court will defer to the IHO. Additionally, the courts should defer regarding the substantive adequacy of an IEP as opposed to a question of law and it is appropriate for the court to rely on a better reasoned IHO’s decision in circumstances where an SRO decision is inadequately reasoned.

Basis of the Court’s Decision: [T]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed. Gagliardo v. Arlington Cent. Sch. Dist., 489, F3d 105, 112-13 (2d Cir. 2007). We must give “due weight” to the state proceedings, mindful that we lack “the specialized knowledge and experience necessary to resolve … questions of educational policy”. Id. at 113. It is not for the federal court to “ch[oose] between the views of conflicting experts” on such questions (Grim v. Rhinebeck Cent. Sch., 346 F.3d 377, 383 (2d Cir. 2003)) When an IHO and SRO reach conflicting conclusions, “[w]e defer to the final decision of the state authorities,” that is, the SRO’s decision, A.C., 553 F3d at 171. But the question remains: how much deference? In a recent opinion, this Circuit resolved the deference question now posed by the parties. See M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir 2012). Synthesizing our precedence on this issue, we concluded that the deference owed to an SRO’s decision depends on the quality of that decision. Reviewing courts must look to the factors that “normally determine whether any particular judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court.” Id. at 244. However, courts must bear in mind the statutory context and the administrative judges’ greater institutional competence in matters of educational policy. Id. at 244. The M.H. opinion offers several illustrative examples: [D]eterminations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO than when the district court has before it additional evidence that was not considered by the state agency Id. Where, as in our case, the IHO and SRO disagree, the general rule is that “courts must defer to the reasoned conclusions of the SRO as the final state administrative determination.” Id at 246.

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However, when … the district court appropriately concludes that the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusions unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgment.

Id. Therefore, a court must defer to the SRO’s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a betterreasoned IHO opinion may be considered instead.

V.A. v. New York City Dept of Educ., 20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y May 10, 2022) Dispute: When should the Court defer to state decision-makers.

Conclusion: Among other things, the court should generally defer to the final decision of the state authorities (the SRO) and because of the specialized considerations involved, courts should defer to the SRO and IHO regarding the substantive adequacy of an IEP but to a lesser extent regarding whether an IEP was developed according to the proper procedures and on an issue of law. Further, courts should defer to the credibility determinations of the IHO. Basis of the Court’s Decision: “The standard for reviewing administrative determinations requires a more critical appraisal of the agency’s determination than clear-error review but nevertheless falls well short of complete de novo review. M.H. v. New York City Dept of Educ., 685 F.3d 217, 244 (2d Cir. 2012)”.

“In deciding an IDEA case, a court will generally defer to the final decision of the state authorities.

M.H. v. New York City Dept of Educ, 685 F.3d 217, 241 (2d Cir. 2012)” “Still, in policing the state’s adjudication of IDEA matters, a court must determine the weight due any particular administrative finding Id. at 244”. “Because of the specialized educational considerations involved, determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether an IEP was developed according to the proper procedures. Id.” “Accordingly, review of the administrative decision is by no means an invitation to the courts to substitute to substitute their own notions of sound educational policy. Mr. P v.

W. Hartford. Of Educ. 885 F. 3d 735, 748 (2d Cir. 2018)”. “Deference to an SRO’s decision is generally appropriate because the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. R.E. v.

New York City Dept of Educ., 694 F.3d 167, 184 (2d Cir. 2012).” “District courts also apply a deferential standard of review to the IHO’s credibility determinations. See M.H. at 240”.

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“The call for deference, however, does not apply to questions of law. See B.K. v. New York City Dept of Educ., 12 F. Supp. 3d 343, 356 (E.D.N.Y. 2014).”

DEFERENCE – OFFICE OF SPECIAL EDUCATION PROGRAMS (OSEP) LETTERS L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) Dispute: Should the Court defer to the SRO. Conclusion: Based on the circumstances, the Court concluded that the SRO’s decision merited deference.

Basis of the Court’s Decision: In this case, among other things, the parent argued that the SRO “was silent on all the parent’s experts all together” and “disregarded the inherent difference between fact witnesses and expert testimony”.

The Court pointed out that the SRO discussed all of the parent’s experts save one. With respect to that expert, the Court stated that the SRO decision considered “the entire hearing record”.

The Court also said that this expert’s testimony “would not change the ultimate conclusions reached by the SRO”. With respect to that parent’s expert, the Court said that he “did not offer any information on [the student’s] abilities that materially differed from what was already known”. The parent complained specifically that the expert’s opinions relating to whether an FBA was required and whether a recommendation for parent training was required to be a part of the IEP was ignored. The SRO pointed out, however, that neither of these opinions were supported by the IDEA. Finally, in such circumstances, the Court said that the fact “that the SRO did not explicitly address every witness’s testimony [did] not undermine the Court’s conclusion that the SRO’s decision was generally well-reasoned and persuasive”.

Relating to the claim that the SRO “disregarded the inherent difference between fact witnesses and expert testimony’, the Court said that “the SRO did not determine the credibility of any witness, fact or expert; it simply recounted the evidence on which it relied on in totality”. The Court further pointed out “that there [was] no requirement that an SRO give more weight to expert testimony than to that of fact witnesses … and that the SRO ultimately found the fact witnesses more persuasive does not suggest that the experts were not considered”. Moreover, the Court said that “[e]ven if the SRO gave greater weight to the [d]istrict’s experts, a court cannot choose between the competing views of experts on matters of educational policy or substitute its own judgement for that of the hearing officers which it reviews”.

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The IHO’s decision was one page and did not cite to references in the record or to any law. That being the case, the Court said that “[t]o the extent that the parent believes the SRO improperly deferred to the IHO’s decision, this argument is without merit”. The Court pointed out that “the SRO acknowledged the various failures of the IHO and undertook an independent review of the record … resulting in a thorough, careful, reasoned and persuasive 33-page decision. That the SRO ultimately reached the same conclusion as the IHO [did] not render the findings problematic”.

The Court concluded that “[b]ased on the evidence in the administrative record – all of which was also presented to the SRO … the SRO’s decision deserves deference from this Court.”

E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 546-47 (S.D.N.Y. 2016) Dispute: Whether and to whom deference is given.

Conclusion: The Southern District of New York summarizes relevant Supreme Court and Second Circuit cases regarding whether and to whom deference is to be given.

Basis of the Court’s Decision: Federal Courts reviewing administrative determinations under the IDEA “must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.” M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2007) (internal quotation marks omitted). The Court must also consider “any further evidence presented before the District Court by the parties” not presented to the SRO. Grim, v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). As the Supreme Court has concluded, this review of the record is “by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

Because “the role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed,” the district court should not disturb the SRO’s decision if it is thorough, wellreasoned, and based on the record”. D.A.B. v. New York City Dep’t of Educ., No. 14-4119-CV, 630 Fed.Appx, 73, 75-76, 2015 WL 7273409 at *1 (2d Cir. Nov. 18, 2015) (citing R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189 (2d Cir. 2012); Grim 346 F.3d at 380-81; Walczak, 142 F.3d at 129); see also Gagliardo, 489 F.3d at 112-14; A.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir 2009).

By statute, reviewing courts afford such deference via application of the preponderance standard. 20 U.S.C. 1415(i)(2)(C)(iii). However, the preponderance standard does not alone capture precisely how much deference to apply, when to apply more or less, and to whom. As between the conflicting opinions of an IHO and SRO, the reviewing federal court is generally required to defer to the SRO. See M.H. 685 F. 3d at 246. Conversely, where “the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the 51

SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusion unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgement” Id. These inquiries ultimately translate to a review of the persuasiveness of the SRO’s decision. Id at 244. However, the persuasive inquiry “must also be colored by an acute awareness of institutional competence and role” Id. “mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy” Walczak, 142 F.3d at 129 (quoting Rowley at 206, 208).

Different types of findings are also accorded different degrees of deference. The SRO’s findings regarding the IEP’s substantive adequacy command more deference that determinations regarding whether the IEP was developed according to proper IDEA procedures. M.H. 685 F.3d at 246; see also M.P. v. Carmel Cent. Sch. Dist., No 15 CV 3432 (VB), 2016 WL 379765, at *4 (S.D.N.Y. Jan. 29, 2016) (“Courts should afford more weight to SRO determinations when they involve the substantive adequacy of an IEP.”). Determinations of appropriate methodology are accorded greater deference, while factual determinations of progress are afforded less. M.H., 685 F.3d at 246-47. Finally, more deference is due when [the] (c)ourt’s determination rests solely on the same evidence presented to the SRO. Id. D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: Whether Department of Education (DOE) OSEP policy letters are relevant to the issue of whether an FBA is the “equivalent of evaluations for purposes of triggering the right to an IEE” at public expense.

Conclusion: The Court of Appeals concluded that the text of the two OSEP letters cited were not due any deference.

Basis of the Court of Appeals’ Decision: The Court of Appeals rejected the relevance of such DOE policy documents because it concluded that the relevant OSEP letters “ignore[] the plain text of the statute and regulations.”

DEFERENCE – STATE REVIEW OFFICER Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: appeals to federal courts – deference (reliance on) IHO and/or SRO Dispute: Should the District Court have deferred to the SRO. Conclusion: The Second Circuit concluded that the District Court correctly deferred to the SRO. Key Take Away: Parents should remember that generally a District Court “must” defer to the decision of an SRO when compared to that of an IHO; however, where the IHO and SRO reach 52

different results, the Court “must” defer to the SRO unless that decision is “inadequately reasoned” in which case a “better reasoned” IHO decision may be considered.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

The CSE met in March 2021 and August 2021 and developed an IEP for the student for the 20212022 school year. After the district notified the parents of the student’s assigned school, the parent reenrolled the student at the private school that the student had been attending since March of 2020.

The parents submitted a due process complaint in October 2021. The notice asserted that the district denied the student a FAPE for a number of reasons. After an impartial hearing, at which a number of persons testified, including a private evaluator for the parents, the Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents. It should be noted that the IHO’s decision did not “explain the connection among its finding of fact, its assessment of relevant evidence and its conclusion that [the student] was denied a FAPE”.

The parents appealed the case to a State Review Officer (SRO). In a 27-page decision, the SRO decided that the district offered the student a FAPE and overturned the decision of the IHO. The SRO’s decision “outlined the case’s procedural history; thoroughly summarized [the student’s] IEP; explicitly considered [the parents’] procedural and substantive objections; assessed with [references] to the record, relevant evidence”, including that from school psychologists, the private school, and the parents’ evaluator as well as documents; and “explained its conclusions”.

With particular regard to the testimony of the parents’ evaluator that the district’s assigned school was not appropriate, the SRO concluded that it should be given little probative weight because it was “rife with generalizations and unsupported hypotheticals about other classrooms, different years, and safety concerns, and stereotypes of students with different disability classifications, which were particularly unconvincing given that [the evaluator] did not conduct an observation of the proposed district classroom or of the student”.

The parents then filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to rule in their favor. The District Court ruled in favor of the district. It first decided that the SRO’s decision – as opposed to that of the IHO — was entitled to “deference” (should be relied on). The District Court also concluded that the district provided the student with a FAPE and that therefore the parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

After a request that it change its mind, which was denied by the District Court, the parents appealed the decision to the United States Court of Appeals for the Second Circuit. The parents 53

argued that the District Court erred when it concluded that the SRO’s decision warranted deference and said that the District Court should have deferred to the IHO. The parents argued that, as the finder of fact, the IHO was “in the best position to assess the relevant facts and witnesses” and issued a “well-reasoned” opinion based on “the weighing of that evidence”.

The Appeals Court disagreed. It pointed out that generally, the district court “must defer to the final decision of the state authorities, that is, the SRO’s decision”. Further, where the IHO and SRO reach different results “a court must defer to the SRO’s decision unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead”.

The Appeals Court concluded that the SRO’s decision was “reasoned and supported by the record” and concluded that the District Court correctly gave the SRO’s decision deference. The Appeals Court further said that “to the extent that [the parents] contend that the IHO decision is better reasoned than the SRO decision, such argument was “unavailing”.

The Appeals Court upheld the deference given to the SRO’s decision by the District Court.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – related services, deference to SRO Dispute: Whether related services of 30 minute a session were appropriate Conclusion: The court concluded that related services of 30 minutes a session were appropriate.

Key Take Away: A well-reasoned SRO decision about the length of related services sessions will be upheld by a Federal Magistrate and the District Court. In this case, the student could not tolerate any more than 30-minute sessions.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that 30 minutes of related services for the student was too short and should be replaced by longer sessions. The SRO disagreed and concluded that related services of 30 minutes were sufficient.

The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that 30 minute sessions of related services were too short for the student. The Magistrate concluded that the SRO’s decision that related services of 30 minutes were sufficient was “well-reasoned and owed deference” (reliance).

The parent asked the District Court Judge to review the Magistrate’s conclusion that 30 minute sessions of related services were sufficient. The Judge found that the SRO’s conclusion was 54

supported. He pointed to testimony that the student “had a short attention span, was easily fatigued and had very low stamina and tolerance of physical activities and was therefore unable to attend sessions of longer than 30 minutes”. The parent pointed to testimony that the student was “alert”. The Judge said that the description of the student as “alert” was not inconsistent with the SRO’s conclusion that the CSE had a basis to recommend three 30-minute sessions per week of related services.

The Judge concluded this type of dispute is the kind of decision where reliance on the SRO is appropriate.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – placement, deference to SRO Dispute: Whether the student should be placed in a 6:1:1 classroom or a 12:1:4 classroom.

Conclusion: The District Court determined that the student should be placed in a 12:1:4 program.

Key Take Away: If a CSE reasonably concludes that a student has multiple disabilities and requires a program of habilitation and treatment it may assign the student to a 12:1:4 program, which is the most supported classroom environment in State regulation rather that a 6:1:1 classroom.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed the CSE should have placed the student in a 6:1:1 classroom. 4 The SRO disagreed and concluded that the CSE properly placed the student in a 12:1:4 classroom. 5 The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the student should have been placed in a 6:1:1 classroom. The Magistrate concluded that the SRO’s decision that the student should be placed in a 12:1:4 class was “well-reasoned and owed deference”.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that because the IEP showed that the student had “highly intensive” management needs, State 4

A 6:1:1 classroom has six students, one teacher, and one aide.

5

A 12:1:4 classroom has twelve students, one teacher and four aides.

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regulation provided that he be placed in a 6:1:1 classroom. The Judge said, however, that the facts also showed that the student had “severe multiple disabilities”, which served as the basis for his special education determination. Because of this, the district concluded that the student “required a program focused preliminary on habilitation and treatment”. 6 The Judge said that the CSE’s conclusions were “not unreasonable” and noted that the parent agreed with them. The Judge pointed out that for such students New York State regulation provides that a 12:1:4 program was also appropriate as it is the most supportive classroom environment in State regulations.

The Judge determined that it would give “deference” to the SRO’s classroom size decision.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – goals and objectives, deference to SRO Dispute: Whether the IEP sets forth appropriate goals and objectives.

Conclusion: The District Court deferred to the SRO’s conclusion that the IEP’s goals and objectives were adequate.

Key Take Away: The parent should remember that goals and objectives are taken in their entirety. Even if one goal might be unrealistic if other goals and short-term objectives address the needs of the student, a FAPE is provided.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the IEP did not include adequate goals and objectives. The SRO disagreed and concluded that the IEP’s goals and objectives were adequate.

The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the IEP goals and objectives were inadequate. The Magistrate concluded that the SRO’s decision that the IEP’s goals and objectives were adequate should be given “deference”.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have given deference to the SRO’s conclusion. The parent pointed out that one of the goals was admittedly unrealistic. The Judge said that the parent did not explain why one “farfetched” goal made the other goals insufficient or denied the student a FAPE. The “Habilitation are health care services that help a person acquire, keep or improve, partially or fully, and at different points in life, skills related to communication and activities of daily living. Habilitative services include physical therapy, occupational therapy, speech-language pathology, audiology and other servicers for people with disabilities.”

6

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Judge pointed to Court cases which concluded that the adequacy of goals is “precisely” the kind of issue that the IDEA requires that deference be given to state administrative officials. The Judge further pointed out that even when certain goals are “overbroad” or unrealistic Courts have found an IEP to be satisfactory where short term objectives are sufficiently detailed.

The Judge denied the parent’s objection to the Magistrate’s conclusion.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: assistive technology, deference to SRO Dispute: Did the student require the use of assistive technology.

Conclusion: The District Court gave deference to the SRO’s conclusion that the student did not require assistive technology.

Key Take Away: A student does not have a right to assistive technology unless that is necessary for the student to receive a FAPE. Here, the facts at the hearing did not show that the student needed assistive technology to receive a FAPE. Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the student required assistive technology. The SRO disagreed. The SRO concluded that the student did not require assistive technology.

The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the student needed assistive technology. The Magistrate disagreed and determined to give deference (to rely on) to the SRO’s determination that the student did not need assistive technology.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have deferred to the SRO’s decision. The Judge pointed out that assistive technology “will almost always be beneficial to a student” but that it is only required to be provided “if the technology is necessary”. The Judge also pointed out that the parent did not name what specific assistive technology the IEP should have recommended. The Judge said that it was therefore impossible to say that assistive technology was necessary for the student to receive a FAPE. The Judge also pointed out that while the CSE was aware that the student used certain assistive technology to communicate, this did not make the CSE’s decision not to recommend assistive technology a mistake. The Judge said that the impartial hearing showed that the CSE had concerns about the student’s ability “to fully understand” how to use the assistive technology device and “the appropriateness of such services”. The Judge pointed out 57

that the parent did not show any error in this testimony and that therefore the SRO’s decision was entitled to deference.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: evaluation, deference to SRO Dispute: In light of confusion over certain testing, whether the CSE reviewed sufficient evaluative information in preparation for the CSE meeting and had sufficient evaluative information to develop the student’s IEP. Conclusion: The District Court determined that notwithstanding confusion regarding certain testing, the CSE reviewed sufficient evaluative information in preparation for the CSE meeting and had sufficient evaluative information to develop the student’s IEP. Key Take Away: There may be circumstances in the development of an IEP where there is some confusion in the data before the CSE. The key, however, is whether this confusion is acknowledged and whether, overall, the CSE had sufficient evaluative information to develop the student’s IEP. Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the CSE did not have sufficient evaluative information to develop the student’s IEP. Specifically, the parent claimed that the CSE did not address confusion over certain testing information. The SRO disagreed. The SRO “acknowledged” the confusion but concluded that overall, the CSE had sufficient evaluative information to develop the student’s IEP. The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the CSE had insufficient evaluative information to develop the student’s IEP. The Magistrate determined to give deference (to rely on) to the SRO’s determination.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have deferred to the SRO because the SRO did not adequately address the confusion in the evaluative information in front of the CSE. The Judge disagreed. He pointed out that the SRO had addressed the testing issue and determined that sufficient evaluative information existed for the CSE to develop the student’s IEP. The Judge concluded that the SRO’s decision should be given deference.

Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) Issue: goals, deference Dispute: Were the goals set forth in the IEP appropriate for the student’s needs.

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Conclusion: The student’s goals set forth in the IEP were appropriate for the student’s needs.

Key Take Away: The Circuit Court stated that, although some of the IEP goals were not a perfect match to the student’s needs, IDEA requires deference to the expertise of administrative officers.

The student’s teacher wrote the goals and they were deemed appropriate in light of the student’s needs.

Reasoning: The student in this case has received special education as a student with multiple disabilities. The student attended special education public school from 2006 until January 2020, at which time the parents unilaterally placed him at a private school.

The parents filed a due process complaint notice on April 29, 2020. Among other things they challenged the goals set forth in the 2019-2020 IEP. Among other things, the IHO dismissed the parent’s claim that the 2019-2020 goals resulted in a finding that the IEP was insufficient. On appeal, “the SRO determined that most of the goals on [the student’s] IEPs were appropriate for his instructional level, though some were not a perfect match”. Regarding this, “[t]he SRO acknowledged that the evidence showed that as compared to the 2018 IEP, the 2019 IEP contained two goals that were somewhat below the student’s instructional level and one goal that was likely too ambitious”. “However, … the SRO concluded that these adjustments in goals were appropriate because they were developed by the student’s then-current teacher and providers and the evidence indicated that the student’s responsiveness was inconsistent and that changes in the goals were needed”. “[The parents] … brought suit in the district court seeking review of the SRO’s determination.

Regarding goals, the parents asserted that “the SRO’s conclusion [was] not entitled to deference because it illogically concluded that the goals were appropriate despite acknowledging that three of the goals did not match [the student’s] skills. The district court rejected the parents’ argument.

The parents appealed to the Court of Appeals. Upon review of the district court’s decision, the Court of Appeals first pointed out that “[a]n IEP must include a statement of measurable annual goals to meet the child’s needs and make progress in the educational curriculum. See 20 U.S.C. 1414(d)(1)(A)(i)(II). The Court further pointed out that “the sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,382 (2d Cir. 2003).

The parents asserted that the SRO’s conclusion was “not entitled to deference because it illogically concluded that the goals were appropriate despite acknowledging that three of the goals did not match the student’s skills”. The appeals court concluded that the record supported the SRO’s conclusions and “defer[red] to the SRO’s conclusion that [the] goals were appropriately ambitious in light of [the student’s] circumstances. See Endrew F. ex rel Joseph F. v. Douglas Cnty Sch. Dist. RE-1, 580 U.S. 386, 402 (2017).

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Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) Issue: COVID-19 and deference Dispute: Whether the SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction or were outside the SRO’s scope of administrative review.

Conclusion: The SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction.

Key Take Away: In an important victory for parents, the United States District Court for the Southern District of New York held that although the Covid-19 Pandemic resulted in the closing of schools to all students and the initiation of remote instruction to all (“systemic considerations”), a student’s individual rights to be provided with a FAPE during COVID-19 under the IDEA could not be ignored but must be reviewed by the SRO in circumstances where the question at issue involved individual relief that the SRO was capable of providing.

Reasoning: The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020, through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended a week online and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) provided for a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year, placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and with extended school 60

year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020, the parent filed a due process complaint notice. The complaint asserted that (1) the district had “unilaterally, substantially, and materially” changed the student’s “status quo” program from a school classroom to her home and (2) the district “had failed to provide a FAPE since mid-March 2020. As relief, among other things, the parent requested “an extensive independent evaluation of [the student] to determine the need for compensatory services and a new [CSE] meeting to review the same”, “a determination of appropriate compensatory services [for the student] due to the denial of FAPE”, and “an interim order requiring [the student’s] school district to immediately implement [the student’s] IEP by reopening her school”.

On August 31, 2021, the IHO found that the student was entitled to an independent educational evaluation (IEE). On December 2, 2021, [the IHO] dismissed [the parent’s] complaint in part holding that her request for an order reopening [the student’s] school was moot in light of [the school’s] return to full-time in-person instruction”. “On February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year and (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] took issue with the State’s executive decision to close schools or the [district’s] decision to deliver instruction remotely”, “the state administrative process lacked jurisdiction over the complaint” as the decisions being challenged were “systemic in nature” as the COVID-19 related claims were relevant to other students and thus were “outside the scope of administrative review under the IDEA, which focuses on how to define and treat individual students’ learning disabilities.”.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. With respect to the SRO’s finding that the parent’s claim regarding the State’s executive decision to close school or the district’s decision to deliver instruction remotely “were outside of the scope of administrative relief and that therefore the SRO lacked jurisdiction to consider them, because they were “systemic in nature”, the Court disagreed. The Court started out with the proposition that the SRO’s decision in relevant part “implicates a question of law” and therefore the Court owes no “deference” to such decision. The Court concluded that “[e]xercising de novo review, … the SRO’s conclusion – that local authorities were categorically barred from assessing [the parent’s] due process complaint that her daughter had been denied a FAPE because the claim implicated systemic considerations – [were] inconsistent with the IDEA’s text and the caselaw applying it”. Regarding the “systemic violation exception to administrative exhaustion” the Court pointed out that this was “addressed to a different context: one in which collective challenges are brought and collective relief is sought”. But, the Court 61

said, this “does not mean that state administrative tribunals are barred –or may abstain -- from hearing claims by an individual parent of a FAPE denial that implicates broader policies”. The Court further pointed out that the “individualized claim does not seek relief that an SRO is incapable of providing”. Rather here, the court also pointed out that “[the parent] seeks a finding that [the student] was denied a FAPE and as a remedy an extensive independent evaluation of [the student] to determine the need for compensatory services, and a remedial order requiring [the district] to provide [the student] with such services”. The Court stated that the parent’s “bid for individualized relief for her daughter thus is well within the heartland of IDEA claims”.

In its decision, the Court pointed out that “[i] sum, by refusing to adjudicate this case on the false premise that [the SRO] lacked power to hear it, the SRO here failed to discharge her fundamental obligation under the IDEA: to decide on substantive grounds whether [the student] received a free appropriate public education”. The Court continued that it “reject[ed] the SRO’s rational that claims of FAPE denials that implicate systematic considerations, like the delivery of remote instruction and services to students with disabilities during the pandemic are categorically beyond the jurisdiction of the IDEA’s impartial hearing process to individually remedy”. The Court said that “[p]rovided that the remedy sought is one that an SRO has the power to award and that the parent has otherwise complied with the IDEA’s dictates, the SRO is obliged to address such claims”.

A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) Issue: equitable considerations, deference Dispute: Did the district court err by approving a grant of 3/8 tuition reimbursement.

Conclusion: The Circuit Court reversed the district court’s award of 3/8 tuition reimbursement and determined thar the district court, which relied on the IHO, erred as a matter of law and reversed the IHO and the district court.

Key Take Away: Once a determination is made that the district has denied the student a FAPE and that the student’s private school placement is appropriate, an IHO or SRO can only reduce a grant of tuition reimbursement as a result of “equitable” considerations. Consistent with this, an IHO or SRO cannot reduce the amount of tuition reimbursement based on a view that the private program is “partially appropriate”. Finally, an IHO or SRO must specifically cite to the particular equitable consideration that it sees as responsible for the reduction in the amount of the tuition reimbursement award. The Circuit Court pointed out that the above involve questions of law and that therefore the courts owe no deference to such determinations of the IHO and SRO. Reasoning: The student in this case is receiving special education services as a student with autism. The student was 13 years old during the 2020-2021school year.

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After a determination that the student was not provided a FAPE, the parents enrolled her in a private school for the 2020-2021 school year. At the private school, the parents “opted for remote instruction for the year due to apprehensions about the COVID-19 pandemic”.

Thereafter the parents “initiated administrative proceedings to seek reimbursement for [the student’s] education”.

The IHO found that the private school “was generally an appropriate private school placement but awarded [the parents] only partial tuition reimbursement for the 2020-2021 school year due to the nature of [the student’s] remote instruction program”. In this regard, the student received three hours a day of remote instruction and therefore the IHO determined that the student should be reimbursed only for 3/8 of the tuition costs of the private school. The parents appealed to the SRO. “The SRO disagreed with the IHO’s finding that [the parents’] private school placement was appropriate and denied [the parents] any tuition award for the 2020-2021 school year”.

The parents appealed to the district court “seeking review of the SRO’s decision”. “The district court determined that based on [the student’s] progress and the totality of the circumstances, the IHO correctly found that [the student’s] placement addressed her needs, albeit to a limited extent and that [the parents] were entitled to partial reimbursement”.

The parents appealed to the Circuit Court “seeking review of the district court’s partial reimbursement award in lieu of a full reimbursement award”.

The Circuit Court found “that the district court exceeded its discretion in awarding partial tuition reimbursement”. In the first place, the Circuit Court concluded that “the district court did not meaningfully analyze and weigh the equities in determining the tuition award”. In this regard, it said that “the district court noted that “[the district] [did] not appear to dispute that equitable considerations favor[ed] [the parent] for the 2020-2021 school year”. However, “[t]hen [the district court accepted the IHO’s findings that the remote live sessions [the student] participated in for three hours per day was appropriate, and she was therefore entitled to partial reimbursement of tuition”. But the Circuit Court said, “the district court identified no equitable factors that weighed against [the student]”. The Circuit Court concluded that “[t]o the extent the district court reduced the award in its equitable discretion, it erred by doing so without finding that any equities weighed against [the] student”.

Second, the Circuit Court pointed out that the district court “improperly deferred to the IHO’s finding of a partial award”. The Circuit Court pointed out that the district court made its determination to reduce the student’s reimbursement as a part of its analysis of the second Burlington-Carter prong; whether or not the private school was appropriate and not as a part of its determination of the extent to which equitable considerations supported an award of tuition reimbursement. The Circuit Court said that the district court “should have determined only whether the placement was appropriate or not:”.

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Finally, the Court said that once the parents pass the first two prongs of the Burlington-Carter test, there is a presumption of a full tuition reimbursement award. The Circuit Court pointed out that “[f]rom this entitlement of full reimbursement, equitable factors are considered in deciding whether to reduce or deny reimbursement”. In this case, the Circuit Court pointed out that “after finding that [the parents] were eligible for relief, the IHO also found that the equities favored [the parents]”. This was improper the Circuit Court indicated, as the district court failed to point to “any equitable factors that justified this reduction”.

The Circuit Court concluded that “[c]ourts must give due weight to state administrative proceedings under the IDEA but owe no deference on issues of law”. The Circuit Court continued by saying that “[b]y inappropriately applying the Burlington-Carter test, the IHO erred in determining the partial reimbursement award. Thus, the district court then erred by relying on the IHO’s award finding”.

The Circuit Court determined that “the judgment of the district court granting in part [the parents’] motion for summary judgment is vacated and the case is remanded for further proceedings”.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Whether the IHO or the SRO should be granted deference.

Conclusion: The Court found that the SRO should be given deference.

Basis of the Court’s Decision: In this case, the student has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living. The student communicates only through vocalization, facial expressions, body movements, and eye gazing.

He is incapable of learning on a typical academic trajectory. At the time of the proceeding the student was sixteen or seventeen years old.

A CSE meeting relative to the student convened in March 2021. At that meeting, the CSE team formulated the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a specified district 75 public school, a 12-month program in a 6:1+1 special class and extensive related services in the area of occupational therapy, physical therapy, speechlanguage therapy, vision education services, and full-time individual health paraprofessional services. The IEP was amended in August 2021 to add an individual assistive technology device.

The parents requested a due process hearing in June 2021; giving notice that the district had denied the student a FAPE and of their intent to enroll the student in a private school. The parents executed a contract with the private school in July 2021.

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Among other things, the IHO found that the district did not provide the student with a FAPE, and that the equities favored the parents’ request for funding. The appropriateness of the student’s private school was not disputed.

The district appealed to the New York State Review Officer (SRO). The SRO found that the district provided the student a FAPE, which ended the Burlington-Cater analysis in favor of the district.

The Court first pointed out that it engages in an independent review of the administrative record and makes a determination based on a preponderance of the evidence. Notwithstanding this, the Court went on to say that it “must give due weight to the [State] administrative proceedings “mindful that the judiciary generally lacks the specialized knowledge and policy experience necessary to resolve … difficult issues of law and policy”. The Court further explained that when an IHO and an SRO reach differing opinions, it must defer to the final decision of the State authority (the SRO). However, in such a case, the extent of deference owed to the SRO depends on the quality of that decision. The SRO’s decision merits “greater deference when it is … a decision regarding the substantive adequacy of the IEP compared to a decision concerning whether the IEP was developed according to proper procedures, a decision grounded in thorough and logical reasoning, or a decision based entirely on the same evidence as before the district court. The Court summarized the rule as “a Court must defer to the SRO’s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead.

The Court found here that the SROs decision merited “substantial deference” as it was the final decision of the State authorities. Further, the Court found the 27-page single-spaced decision, “carefully and thoroughly” examined the record and, in particular, that the SRO analyzed a variety of documentary and testimonial evidence from the IHO hearings and the underlying CSE meetings. With respect to the expert testimony that the parents relied on to challenge the SRO’s deference, the Court said that the SRO “carefully evaluated” that evidence and “logically concluded that it should be given little probative weight”.

R.E. v. New York City Dept of Educ., 649 F3d 167, 189 (2d 2012) Dispute: When should a Court defer to state decision-makers.

Conclusion: In IDEA cases, the role of the federal courts in reviewing state educational decisions is circumscribed; keeping in mind that a court lacks the specialized knowledge and experience necessary to resolve questions of educational policy. Among other things, and as a general rule courts defer to the final decision of the state authorities (the SRO) but the deference owes to the SRO is determined by the quality of that decision and circumstances may occur where the court will defer to the IHO. Additionally, the courts should defer regarding the substantive adequacy of an IEP as opposed to a question of law and it is appropriate for the court to rely on a better reasoned IHO’s decision in circumstances where an SRO decision is inadequately reasoned.

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Basis of the Court’s Decision: [T]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed. Gagliardo v. Arlington Cent. Sch. Dist., 489, F3d 105, 112-13 (2d Cir. 2007). We must give “due weight” to the state proceedings, mindful that we lack “the specialized knowledge and experience necessary to resolve … questions of educational policy”. Id. at 113. It is not for the federal court to “ch[oose] between the views of conflicting experts” on such questions (Grim v. Rhinebeck Cent. Sch., 346 F.3d 377, 383 (2d Cir. 2003)) When an IHO and SRO reach conflicting conclusions, “[w]e defer to the final decision of the state authorities,” that is, the SRO’s decision, A.C., 553 F3d at 171. But the question remains: how much deference? In a recent opinion, this Circuit resolved the deference question now posed by the parties. See M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir 2012). Synthesizing our precedence on this issue, we concluded that the deference owed to an SRO’s decision depends on the quality of that decision. Reviewing courts must look to the factors that “normally determine whether any particular judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court.” Id. at 244. However, courts must bear in mind the statutory context and the administrative judges’ greater institutional competence in matters of educational policy. Id. at 244. The M.H. opinion offers several illustrative examples: [D]eterminations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO than when the district court has before it additional evidence that was not considered by the state agency Id. Where, as in our case, the IHO and SRO disagree, the general rule is that “courts must defer to the reasoned conclusions of the SRO as the final state administrative determination.” Id at 246.

However, when … the district court appropriately concludes that the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusions unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgment.

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Id. Therefore, a court must defer to the SRO’s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a betterreasoned IHO opinion may be considered instead.

V.A. v. New York City Dept of Educ., 20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y May 10, 2022) Dispute: When should the Court defer to state decision-makers.

Conclusion: Among other things, the court should generally defer to the final decision of the state authorities (the SRO) and because of the specialized considerations involved, courts should defer to the SRO and IHO regarding the substantive adequacy of an IEP but to a lesser extent regarding whether an IEP was developed according to the proper procedures and on an issue of law. Further, courts should defer to the credibility determinations of the IHO.

Basis of the Court’s Decision: “The standard for reviewing administrative determinations requires a more critical appraisal of the agency’s determination than clear-error review but nevertheless falls well short of complete de novo review. M.H. v. New York City Dept of Educ., 685 F.3d 217, 244 (2d Cir. 2012)”.

“In deciding an IDEA case, a court will generally defer to the final decision of the state authorities.

M.H. v. New York City Dept of Educ, 685 F.3d 217, 241 (2d Cir. 2012)” “Still, in policing the state’s adjudication of IDEA matters, a court must determine the weight due any particular administrative finding Id. at 244”. “Because of the specialized educational considerations involved, determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether an IEP was developed according to the proper procedures. Id.” “Accordingly, review of the administrative decision is by no means an invitation to the courts to substitute to substitute their own notions of sound educational policy. Mr. P v.

W. Hartford. Of Educ. 885 F. 3d 735, 748 (2d Cir. 2018)”. “Deference to an SRO’s decision is generally appropriate because the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. R.E. v.

New York City Dept of Educ., 694 F.3d 167, 184 (2d Cir. 2012).” “District courts also apply a deferential standard of review to the IHO’s credibility determinations. See M.H. at 240”.

“The call for deference, however, does not apply to questions of law. See B.K. v. New York City Dept of Educ., 12 F. Supp. 3d 343, 356 (E.D.N.Y. 2014).”

SCOPE OF REVIEW T.C. v. William Floyd Union Free Sch. Dist, 774 F.Supp.3d 583 (E.D.N.Y. 2025) Issue: Appeals to the State Review Officer and to Federal and State Courts – scope of review.

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Dispute: Should the parent’s concern regarding adaptive physical education be considered by the SRO and the District Court.

Conclusion: The District Court determined that the parent’s concern about adaptive physical education should not be considered by the SRO and by the District Court.

Key Take Away: A parent needs to remember that unless the parent includes a concern in the due process complaint or unless the district “opens the door” (actively cooperates in the discussion of the issue) to the consideration of that concern at the impartial hearing, the concern will not be considered by the IHO or reviewed by the Courts.

Reasoning: The student is 15 years old and has been diagnosed with Specific Learning Disorders and Attention Deficit/Hyperactivity Disorder.

The CSE met in May 2021 for an annual review for the 2021-2022 school year. The CSE did not make any recommendations regarding the student’s access to adaptive physical education and that related service did not appear on the student’s IEP. On August 16, 2021, and for reasons unconnected with adaptive physical education, the parent advised the district by letter that she disagreed with the CSE’s recommendation, that she was enrolling the student in a private school, and that she was seeking tuition and transportation costs due to “substantive and procedural denials” of a FAPE. As a result, the district scheduled another CSE meeting in September 2021. Adaptive physical education was not discussed in the meeting and did not appear on the resulting IEP. The parent wrote the district again on December 3, 2021, which led to a further CSE meeting in January 2022. Nor did that CSE meeting include any discussion on adaptive physical education and that related service again did not appear on the resulting IEP. For other reasons, the parent continued to be unsatisfied with the outcome of the meeting.

At some point and by mistake, the district issued a proposed school schedule for the student which included adaptive physical education.

The parent filed a due process complaint on December 6, 2021. The complaint said that the district failed to provide the student with a FAPE. The due process complaint did not raise any issues regarding adaptive physical education. The impartial hearing began in March 2022 and ended in April 2022. During the impartial hearing the parent asserted that the district had inappropriately placed the student in adaptive physical education. The district did not address this issue other than having one of its pieces of evidence be the mistakenly prepared class schedule. However, the IHO considered the question and found that the district had inappropriately assigned the student to adaptive physical education. Because of this and two other issues, the IHO concluded that the May 2021 CSE did not provide the student with a FAPE. 68

The district appealed to the SRO. The district said that the IHO’s conclusion that the student was denied a FAPE because of his inappropriate placement in an adaptive physical education class should be reversed. The district argued that since this issue was not raised in the due process complaint, the IHO had improperly considered that issue. The parent disagreed and said that the appropriateness of adaptive physical education should be considered. The SRO concluded that because the parent had failed to raise the adaptive physical education issue in the due process complaint, that issue was not able to be considered at the impartial hearing. The SRO also considered whether, during the impartial hearing, the district had “opened the door” to consideration of that issue at the impartial hearing. Here, the SRO pointed out that the adaptive physical education issue was raised by the parent at the hearing and that the parent’s concern was not responded to by the district. Based on this, the SRO concluded that the district did not open the door to consideration of the issue. The SRO also said that the adaptive physical education recommendation was not included in the May 2021 IEP and was mistakenly included in the student’s proposed class schedule.

The parent began a lawsuit in the United States District Court for the Eastern District of New York in November 2022. The parent argued that the appropriateness of adaptive physical education for the student should have been considered by the SRO. In particular, the parent argued that the inclusion of adaptive physical education in the student’s program reflected what was “available” by the district and not what the student needed to be successful, She said that the district “opened the door” to consideration of this issue by introducing into evidence at the impartial hearing the exbibit which showed that the student would be participating in adaptive physical education.. The parent also cited law to the effect that “the waiver rule” is not to be mechanically applied. The district said that the District Court should accept the reasoning of the SRO that the adaptive physical education issue could not be considered.

The District Court concluded that the SRO was correct that the adaptive physical education issue should not have been considered at the impartial hearing because that issue was not raised in the due process complaint and also because the district did not “open the door” to its consideration. The District Court concluded that this issue was beyond the scope of what could be considered by the IHO and therefore also beyond the scope of what issues should be considered by the District Court. The District Court also agreed with the SRO that even if the issue regarding adaptive physical education had been properly raised, the IHO’s conclusion should be reversed. Here, the District Court pointed out that adaptive physical education was not even in the May 1, 2021, IEP and was included in the student’s proposed class schedule by mistake. The District Court said that in that event the IHO’s conclusion would have been based on “speculation” that the district would not have adhered to the IEP. Cornett v. Banks, 23-CV-06893 (MMG), 2025 WL 712799 (S.D.N.Y. Mar. 5, 2025) Issue: Appeals to federal and state courts – scope of review Dispute: May a District Court consider issues that have not been appealed or cross-appealed to the State Review Officer (SRO).

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Conclusion: The District Court concluded that it could not consider issues that were not appealed or cross-appealed to the SRO. Key Take Away: A parent should keep in mind that a District Court will not consider an issue unless that issue is first appealed or cross-appealed to the SRO. Reasoning: The student in this matter is eligible for special education as a student with a traumatic brain injury.

In January 2022, the CSE met to develop the student’s IEP for the 2022-2023 school year. The CSE recommended a program for the student which included a specific district school. The parent rejected the school placement and reenrolled the student in the private school that the student had attended since 2018.

The parent submitted a due process complaint in July 2022. It charged that the district denied the student a FAPE. The parent claimed that the CSE failed to appropriately evaluate the student and that the district did not provide the parent with an appropriate tour of the school. The parent also claimed that the IEP was substantially inadequate because of the CSE-recommended class size.

The Impartial Hearing Officer (IHO) held a hearing on the due process complaint. She concluded that the district had failed to provide the student with a FAPE. However, she also concluded that the student’s placement at the private school was not appropriate and that equitable considerations did not support the parent’s request for reimbursement. The parent appealed these latter two decisions to the SRO. The district appealed the IHO’s decision that it did not provide the student with a FAPE to the SRO. The SRO did not review the parent’s concerns about the adequacy or the appropriateness of the IEP on the basis that the parent had “waived” (given up) any objection by failing to cross-appeal those issues to the SRO. The parent went to the United States District Court for the Southern District of New York. Both the parent and the district asked the District Court to find in their favor. The parent said that she could raise issues that she did not cross-appeal to the SRO. The district argued that the parent had waived her right to appeal those issues that she had not appealed to the SRO. In reply, the parent said that the District Court should “conduct an independent evaluation” of the case and that the failure of the parent to appeal the issues to the SRO did “not constrain the court’s ability to provide suitable relief”.

The District Court determined that the parents were attempting to “relitigate” issues that should have been determined before the S.R.O. The District Court decided that because the parent had

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not raised those issues to the SRO, it would not consider them. 7 As for the argument that the District Court had independent jurisdiction to consider the questions, the District Court said that the parent had provided “no justification” in law for it to do this.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: Appeals to Federal and State Courts – Scope of Review Dispute: Whether the Federal Magistrate and the District Court could consider the parent’s specific claims that the student’s rights under the IDEA were violated.

Conclusion: The Federal Magistrate and the District Court could not consider the parent’s specific claims that the student’s rights under the IDEA were violated.

Key Take Away: A parent must explain each alleged violation of FAPE in the due process complaint. The failure to do so will prevent the Federal Magistrate and the District Court from considering those claims. Moreover, a parent must appeal an issue to the Magistrate in order for the District Court to consider it.

Reasoning: The parent filed a due process complaint. It thereafter appealed to an Impartial Hearing Officer and a State Review Officer. The parent claimed that the district “significantly impeded her opportunity to participate in the decision-making process regarding the provision of a FAPE to [the] student.” The parent was unsuccessful before the IHO and the SRO. The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed to the Magistrate that (1) the meeting notice was not in Spanish, her native tongue; (2) the CSE did not include persons with knowledge or special expertise about the student; and (3) the CSE did not consider classroom placements with fewer students. The Magistrate did not consider these issues as none of them were included in the parent’s due process complaint. The Magistrate further said that the parent did not explain why she had left these claimed violations out of her due process complaint. Nor had she pointed to some other “fair notice” provided to the district that would allow it to consider the issues. \The parent appealed the Magistrate’s decision to a District Court Judge. The parent claimed that she had provided the district with fair notice of her claims. The Judge pointed out that the parent did not raise this argument with the Magistrate and that therefore the Judge was not allowed to consider it.

Notwithstanding the District Court’s determination that the parent had given up her right to have issues considered, the District Court proceeded to review each issue. The District Court decided that even if the issues could have been considered, none of the parent’s arguments would have been successful.

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The Judge reviewed the parent’s argument anyway. The Judge pointed out that the parent was relying on one broad statement in the due process complaint which said that the district “significantly impeded [the parent’s] opportunity to participate in the decision-making process regarding the provision of a FAPE to [the] student”. The Judge concluded that this was “a general statement” which did not include any of the parent’s subsequent specific complaints.

The Judge concluded that it would not consider the parent’s claims.

Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024) Issue: scope of review Dispute: Was the parent precluded from raising an issue before the IHO that had not been raised in the due process complaint notice.

Conclusion: The parent was precluded from raising an issue before the IHO that had not been raised in the due process complaint notice.

Key Take Away: No matter how important or relevant an issue is to a case, it may not be considered by an IHO unless the issue is first raised in the parent’s due process complaint notice.

Reasoning: The student in this case is a minor, uses a wheelchair, and is eligible for special education as a student with multiple disabilities.

The parent requested an impartial hearing on May 22, 2021. The parent’s due process complaint notice asserted a variety of claims. During the impartial hearing, the parent asserted an additional claim —"that the placement school did not provide [the student] with a FAPE because the school building was inaccessible beyond its first-floor entrance”. The IHO agreed that the district denied the student, who as indicated used a wheelchair, a FAPE for this reason. The district appealed the IHO’s decision to a State Review Officer (SRO). On July 30, 2021, an SRO reversed the IHO’s decision, “holding instead that [the parent] forfeited the issue of accessibility at the placement school …”. The parent sued in District Court, which “granted [the district’s] motion for summary judgement, upholding the SRO’s decision”. The parent appealed the District Court’s decision to the Court of Appeals.

The Appeals Court first explained that “[u]less the other party consents, a party requesting a due process hearing is typically precluded from raising issues regarding the IEP that she did not include in her due process complaint”. The Appeals Court pointed out that “[t]he parent failed to raise the placement school’s inaccessibility in her due process complaint [but] [i]nstead, she raised it for the first time during the hearing...” The Appeals Court said that this “depriv[ed] the [district] of the opportunity to develop the record to reflect whether the placement school could accommodate [the student] or whether changes to the selected school placement were necessary”.

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On the above basis, the Appeals Court advised that it agreed with the District Court that [the parent] had forfeited her claim.

Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Was it proper under the IDEA for the Court to consider the question of whether the grouping of students in the recommended class was appropriate.

Conclusion: The Court upheld the SRO, finding that the parents waived the issue of whether the grouping of students in the recommended class was appropriate and did not consider that issue.

Basis of the Court’s Decision: “The parents argue[d] that the proposed class grouping clearly failed to comply with the regulatory requirements and was not appropriate for [the student] because the students in the classrooms available for [the student] had a disparate and wide variance of academic characteristics, social development, physical development and management needs”. “The SRO found that the [p]arents waived this argument by not asserting it in its [due process complaint notice].” “The Court agree[d].”

In this case, the Court concluded that it was precluded from looking at this issue because it was not raised in the parents’ due process complaint notice. The parents argued that this argument was not waived and could be considered as they asserted in their due process complaint notice that the district “failed to recommend or offer a FAPE.” The Court concluded that the argument “proves too much” and that if this argument held, there would be no issue which would ever be waived. The Court said this would “undermine the very purpose of the [due process complaint notice]”. In this regard, the Court explained that the due process complaint notice “triggers a 30day resolution period, during which the school district can correct any deficiencies without penalty “. See R.E. v. New York City Bd. of Educ., 694 F.3d 167, 187 (2d Cir. 2012). The Court indicated if the due process complaint notice did not put the district on notice of a particular issue, then the district did not have the opportunity to address the issue during the resolution period, which would eliminate the very purpose of the resolution period. With this in mind, “the Court thus reject[ed] the parents’ argument that the mere assertion that [the student was denied a FAPE was sufficient to preserve their argument with respect to [the student’s] class grouping”.

The Court had previously advised that “[t]he Second Circuit has instructed that the waiver rule is not to be mechanically applied” and that “so long as the plaintiffs provide fair notice to the Department of their claim, a court should deem that claim properly raised.” See C.F. v. New York City Dept of Educ., 746 F.3d 68, 78 (2d Cir. 2014).

Consistent with this and notwithstanding the above, the parents assert that the district “opened the door to the issue by allowing the [p]arents’ attorney to cross examine a witness about [the student’s] class grouping”. The Court pointed out that “[t]he Second Circuit has identified a 73

narrow exception to the waiver rule: if the [district] opened the door to an otherwise waived issue in the impartial hearing, then the parents would not be precluded from advancing the claim.” See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 250-51 (2d Cir. 2012). The Court pointed out that “[c]ourts have found that a party has opened the door to an issue that wasn’t raised in the original [due process complaint notice] if it raises the issue during the hearing and the issue comprises a large part of the testimony presented at the hearing.” Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D. 2017 WL 4466613 at *4 (S.D.N.Y. Oct. 5, 2017), aff’d, 739 F. App’x 79 (2d Cir. 2018).

Upon review, the Court concluded that the district “did not open the door” to address the issue of the student’s grouping. It pointed out that “it was the parents’ attorney who belatedly … attempted to broach the issue of … grouping during cross examination”. Further, while the district “later briefly posed two questions that might have been related to the grouping of the student” both of those questions addressed grouping in “the context” of the student’s private school and not the district’s recommended placement. The Court concluded that “[t]his level of engagement with the issue [was] insufficient to find that the [district] opened the door to the parent’s argument …”.

Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Was the Court precluded from addressing the issue of whether holding the district’s CSE meeting in June 2019, violated a timeliness requirement of the IDEA. Conclusion: The Court held that it was precluded from addressing the question of whether the district’s June 2019 CSE meeting violated a timeliness requirement of the IDEA. Basis of the Court’s Decision: Federal Courts are generally precluded from addressing a matter not set out in the due process complaint notice. In light of the availability of the resolution session (see 20 U.S.C. 1415(f)(1)(B)), this ensures that the district will have the opportunity to address a matter in the first instance and that the district will not be required to address an issue at the hearing that it is unaware of.

Consequently “the party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process complaint notice], unless the other party agrees otherwise”. Courts have agreed that this principle also applies in the context of judicial review and, in particular, that generally a court should not review a matter not found in the due process complaint notice, unless the other party agrees. See C.F. ex rel R.F. v. New York City Dept of Educ., 746 F.3d 68, 78 (2nd Cir. 2014).

At the same time, the Court pointed out that “the waiver rule is not to be mechanically applied”.

In particular, in circumstances where “(1) the [due process complaint notice] provided fair notice to the [district] of the argument at issue; (2) both the IHO and SRO reached the issue on the merits, giving the federal court a record for review; or (3) the argument goes to the heart of [the] 74

dispute”, an issue not set forth in a due process complaint notice will not be precluded from review. C.F., 746 F.3d at 78.

The question in this case was whether holding an “IEP meeting in June of 2019 violated a timeliness requirement of the IDEA”. The Court found that the general preclusion rule applied.

The Court also found that the exception to the general waiver rule did not apply. In this regard, the Court pointed out that “the [p]arents did not raise the delay in holding the [CSE] meeting in their [due process complaint notice] and [thus] did not give the [district] notice of this [alleged] procedural violation”. The Court also pointed out that “[n]either the IHO nor SRO reached the issue and the argument does not go to the heart of the dispute”.

The Court found that therefore it was precluded from addressing the issue of whether the district’s June 2019 CSE violated a timeliness requirement of the IDEA. Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Was it proper under the IDEA for the Court to consider the question of whether the student’s evaluations were appropriate.

Conclusion: The Court reversed the SRO, held that the parents did not waive the issue of whether the CSE properly evaluated the student, and considered the question.

Basis of the Court’s Decision: “[T]he parents argue[d] that the CSE failed to conduct appropriate evaluations”. “The SRO found that the [p]arents’ [due process complaint notice] did not include any allegations related to a failure of the district to evaluate the student and deemed the [p]arents’ argument waived”.

The Court advised that “[t]he Second Circuit has instructed that the waiver rule is not to be mechanically applied” and that “so long as the plaintiffs provide fair notice to the Department of their claim, a court should deem that claim properly raised.” See C.F. v. New York City Dept of Educ., 746 F.3d 68, 78 (2d Cir. 2014).

In this case, “the parents’ [due process complaint notice] alleged that the IEP was not the product of any individualized assessment of all of [the student’s] needs. The Court found that such a statement put the [d]istrict on notice that the [p]arents intended to make a procedural argument about the [district’s] failure to conduct the mandated evaluations of [the student].”

The above being the case, the Court reversed the SRO and considered the parents’ claim.

B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) Dispute: Whether the issue of the student’s specific disability classification was waived.

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Conclusion: The Court held that while the student’s disability classification was dealt with extensively by the SRO, since the matter was not raised before the Court any argument concerning that issue was waived.

Basis of the Court’s Decision: The student in this case has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyper-Activity Disorder, reading and writing impairments, and chronic kidney disease. The student is eligible for special education programs and services as a student with a disability and in particular a student with another health impairment.

During a number of CSE meetings, the parents requested that the student’s classification be changed to a student with autism. During all relevant time periods, the CSE declined to do so. In the proceedings below, the SRO held that the disability classification of other health impairment as opposed to a student with autism did not deny the student a FAPE. Although the parents appealed other determinations of the SRO to the District Court, the parents did not appeal this classification determination. The Court, in turn, determined that “any argument concerning that issue is waived and cited to C.S. v. Yorktown Cent. Sch. Dist., 16-CV-9950 (KMK), 2018 WL 1627262 at *28 n.38 (S.D.N.Y. Mar. 30, 2018). See also Palmieri v. Lynch, 392 F.3d 73, 87 (2d Cir. 2004).

ADDITIONAL EVIDENCE TO COURT Leonarda Bautista v. David C. Banks, 23-cv-11161, 2025 WL 861223 (Mar. 19, 2025) Issue: additional evidence Dispute: Should the District Court accept the additional evidence.

Conclusion: The District Court concluded that it would not accept the additional evidence.

Key Take Away: In order for a parent’s request that a court accept additional evidence, the parent must show “a justification for their failure to present the evidence” in the first instance at the administrative hearing.

Reasoning: The student in this case receives special education services as a student with multiple disabilities.

In October 2022, the parent filed a due process complaint claiming that the district failed to provide a FAPE for the student for the 2022-2023 extended school year, that the parent’s private placement was appropriate and was supported by equitable considerations and requesting direct funding for 1:1 nursing costs.

The district did not attend the impartial hearing. As a consequence, in May of 2023, the impartial hearing officer (IHO) issued a decision that the district conceded that it had not provided the student with a FAPE and that the parent’s placement was appropriate.

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The IHO, however, did not order the district to pay for the cost of the student’s 1:1 nursing services. The IHO, and the State Review Officer (SRO), on appeal, both concluded that there was not enough evidence to show that the student received nursing services. Further, at the impartial hearing, the parent’s counsel had, in answer to the IHO’s question about the amount due, agreed that the amount due was the “tuition-only” amount cited by the district. Further, the IHO and SRO concluded that the evidence relating to the student’s need for nursing services did not prove a need for nursing services as opposed to a need for a paraprofessional.

The parent began a court proceeding in the United States District Court for the Southern District of New York. The parent said that the district denied the student a FAPE when they were denied funding for 1:1 nursing services. The parent blamed the lack of evidence of expenditures for 1:1 nursing services as a result of a “mistake from an inexperienced attorney”. The district argued that the SRO’s review was detailed and that the parent did not provide sufficient evidence for funding for additional services. Both parties sought the District Court’s agreement with their positions.

At the District Court, the parent sought the District Court’s permission to submit a copy of a nursing affidavit and a nursing services contract with the parent for the 2022-2023 extended school year. The District Court first pointed out that the Second Circuit had not adopted a standard for when additional evidence should be accepted but that district courts in New York “have been unwilling to admit additional evidence when fairness and other equitable considerations cut against doing so”. The District Court also cited cases to the effect that a “more lenient” standard would make the IDEA process “more time consuming” and that parties would use the judicial process “to patch up holes in their administrative case”.

The District Court said that neither the parent nor the parent’s counsel had provided the Court “with a justification for their failure to present the evidence of nursing services in the first instance during the administrative hearing.” The Court also pointed out that there was less reason to admit such evidence where, like here, the existing evidence did not show a need for the additional 1:1 nursing services.

The District Court did not accept the additional evidence.

Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) Issue: Submission of additional evidence to the Court Dispute: Should the Court accept the parent’s additional evidence.

Conclusion: The Court concluded that it would not accept the parent’s additional evidence.

Key Take Away: A parent’s request to submit additional evidence to the Court was rejected when the parent had every opportunity to submit the documents at the administrative hearing, 77

and the parent’s motion to the Court was made late and also did not include the documents that the parent wished the Court to receive.

Reasoning: This case concerns a student with a rare brain disease that impairs motor function and who is eligible to receive special education as a student with a traumatic brain injury.

In October 2022, the parent filed a due process complaint notice. The parent requested reimbursement for related services.

The IHO denied the parent’s request and the SRO affirmed. Both did so on the basis that the parent did not show that the related services were appropriate and that also she did not provide sufficient evidence justifying the amount of her reimbursement.

The parent appealed this ruling to the United States District Court for the Southern District of New York. Regarding her related services claim the parent advised the Court that she “has a comprehensive Dropbox folder of receipts” that she wished to Court to accept.

The Court first explained that the IDEA requires District Courts to hear additional evidence at the request of a party. See 20 U.S.C. 1415(i)(2)(C)(ii). The Court pointed out, however, that even though “the statute is worded in a way that requires courts to hear additional evidence, “courts have been unwilling to admit additional evidence when fairness and other equitable considerations cut against doing so”. The Court also cited to case law that suggested that if courts were required to hear any additional evidence that a party requested, it would cause the whole IDEA process to become more time consuming. Although the Second Circuit has not yet addressed the proper standard for deciding whether to hear additional evidence, many courts initially reject new evidence that was not shared during the administrative hearing. When the courts are deciding whether to allow additional evidence, they have to consider whether allowing that new evidence weakens the authority of the administrative process, the unfairness of one party reserving its best evidence for trial, the reason the witness did not testify at the administrative hearing, and the conservation of judicial resources. See Town of Burlington v.

Dep’t of Educ. for Com. Of Mass., 736 F.2d 773, 791 (1st Cir. 1984), affirmed on other grounds, School Committee of Town of Burlington Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985).

With respect to the parent’s “Dropbox” of evidence the District Court stated that the parent could have provided that evidence during the administrative proceeding but chose not to.

Given this, the Court said that the facts did “not overcome the rebuttable presumption against supplementing the record with new evidence”, a rule that the First Circuit had adopted.

The Court also pointed out that the parent told the Court that “no discovery will be necessary” and agreed that the parties would rely on the underlying administrative record. The Court advised that if the parent wanted the Court to additional evidence she could have and should have told the Court that discovery was necessary when the Court asked. Instead, the Court said the parent “first raised the issue in her motion for summary judgment”, two months after the 78

Court asked if discovery was necessary. Moreover, the Court also said that the parent’s “belated request” did “not even include the proposed exhibits she would like the Court to consider”. The Court concluded that “[a]s of this writing, the Court does not know whether any such receipts actually exists or whether, assuming they do exist, they are at all relevant to assessing [the parent’s] claims”.

The Court declined to consider any additional evidence.

ATTORNEY FEES N.G.B. v. New York City Dep’t of Educ., -- F.4th – (2025), 2025 WL 2078379 (2d Cir. July 24, 2025) Issue: Attorneys’ Fees Dispute: Whether a parent’s attorney can reject an attorneys’ fees settlement offer as too low when the parent had a good-faith reasonable belief for believing that was the case.

Conclusion: The Appeals Court decided that a parent’s attorney could reject an attorney’s fees settlement offer as too low when the parent had a good-faith reasonable belief for believing that this was the case.

Key Take Away: A parent should remember that he/she may reject a district’s attorneys’ fees settlement offer as too low if the parent has a good faith reasonable belief for doing so.

Reasoning: During relevant times in this matter, the student was receiving special education services as a result of the IDEA. The parent filed a due process complaint on December 26, 2019, that the district failed to provide the student with a FAPE. The Impartial Hearing began in December 2019 and concluded in March 2021. The Hearing Officer ruled in the parent’s favor.

The parent filed a lawsuit to obtain attorneys’ fees on December 30, 2021. The District Court issued a scheduling order on April 4, 2022. It provided that the district make an attorneys’ fees settlement offer by May,11, 2022, that the parties meet for and confer on a joint statement of the case by June 10, 2022, and set a briefing schedule for the parent’s “anticipated” request for attorneys’ fees. The parent was required to submit her papers on June 24, 2022.

The district did not comply with the scheduling order’s requirement that it make a settlement offer by May 11, 2022, until almost three weeks later and on June 3, 2022. In fact, the district did not put forth a settlement amount until only seven days prior to the Court-ordered deadline for the submission of the parties’ joint statement of the case, and only about 7 days from the

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date that the parent’s attorneys’ fees brief was due. No party sought additional time from the District Court.

During this time, the parties exchanged a number of written and oral communications. The parent’s counsel pointed out on May 27, 2022, that if the district’s offer was not going to take into account its fees on the attorneys’ fees question, the district’s settlement offer should come quickly as counsel for the parent would be working on its attorneys’ fees papers during the weekend of May 28, 2022, and those attorneys’ fees needed to be taken into account in any settlement offer.

On June 1, 2022, the attorney for the parent reached out to the attorney for the district and advised that “we are just about at the point to update the [attorneys’ fees] billing records so that updates can be included in [the district’s] request for Comptroller approval” of any settlement request.

On June 3, 2021, the district offered the parents $17,000 to settle the parent’s attorneys’ fee claims and asked the parent’s attorney to “suspend work on the [attorneys’ fees request]”. The settlement amount did not include any money for attorneys’ fees for parent’s counsel’s work during the weekend of May 28, 2022, or thereafter. On June 8, 2022, the parent filed the papers in the attorneys’ fee requests, submitted the additional time sheets for the time spent on the attorneys’ fees request asked the district whether it would be making an offer that included the updated billing.

The parent never accepted the $17,000 offer and the district did not make any other offer.

In March of 2023, the District Court considered the parent’s attorneys’ fees request. It found that the total amount of attorneys’ fees and costs “reasonably incurred” prior to the settlement offer was approximately $14,500. This was roughly $2,500 less than the district’s offer of $17,000. The District Court decided that the parent’s counsel’s proposed hourly rates were “excessive” and reduced the claimed attorneys’ fees hours by 20%.

The District Court also decided that the parent was “substantially justified” in rejecting the district’s $17,000 offer. The District Court said that the decision to bypass the district’s offer was “reasonable” because the parent had incurred substantial attorney’s fees, including substantial additional attorney fees that it reasonably believed were not taken into consideration in the settlement offer and of which the district was aware. The District Court reasoned that the parent’s attorneys were “justifiable skeptical” of the district’s request to delay work on the attorneys’ fees motion given that the district had disregarded the prior deadline regarding a settlement offer and that the district could have requested an extension to permit it to make an offer and to give counsel an opportunity to consider that offer without a court hearing looming.

The District Court concluded that it was not unreasonable for the parent’s law firm to keep working on the attorneys’ fees papers and expect that the district’s offer would take that work into account. Therefore, the District Court decided that the parent’s attorneys were substantially justified in rejecting an offer that was based on outdated billing records. The District Court also 80

decided that the parent’s law firm’s estimates and the underlying rates were not so inflated nor unjustifiable that it was unreasonable for parent’s counsel to think it could recover more than the district’s offer.

The District Court’s decision was appealed to the federal United States Court of Appeals for the Second Circuit. The district said that the District Court was mistaken when it concluded that the parent and their counsel were substantially justified in rejecting the district’s settlement offer” based on a reasonableness standard. It said that “a reasonableness standard” contradicts the purpose of the IDEA for a “cap” on attorneys’ fees. The district also said that “a finding of substantial justification premised on arguments for even higher fees than are reflected in the offer threatens to nullify the fee cap provision because it “incentivizes” prevailing parents to always reject settlement offers. The district also said that the District Court’s reasonableness standard “frustrates the IDEA’s goal of incentivizing settlement by creating financial risks for both parties”. Reviewing the District Court’s decision, the district said that the cases talked about there that focused on substantial justification were not similar. The district also said that it’s offer of $17,000 “fully compensated” the parent’s attorneys for their work as the Court decided that $14,500 was appropriate. Finally, the district said that there was “a tension” in the District Court’s conclusions that that the parent attorney’s bills “were premised on inflated hourly rates and excessive hours worked” with its conclusion that it was “not unreasonable for [parent’s attorneys] to think it could obtain more than the $17,000 that was offered.

The parent argued that “a good faith reasonableness standard should apply – that a parent is substantially justified in rejecting a settlement offer so long as the parent has a good faith reasonable basis for doing so.

The federal Appeals Court reviewed the IDEA’s attorneys’ fees provision. It pointed out that included in these provisions was the rule that “attorneys’ fees and costs do not apply subsequent to a written offer of settlement “if a parent is the prevailing party and was substantially justified in rejecting the settlement offer”. This means, the federal Appeals Court said, that “if a district court finds that the prevailing parent was substantially justified in rejecting a settlement offer, the court may award attorneys’ fees and costs for services performed after the offer is rejected”.

The federal Appeals Court said that it had not yet decided what standard to use in evaluating substantial justification under this attorneys’ fees rule. Because of the similarity in wording, the federal Appeals Court looked to the Equal Access to Justice Act. There, the federal Appeals Court pointed out that the United States Supreme Court had concluded “that the standard for substantial justification is justified to a degree that could satisfy a reasonable person”. The Supreme Court said here that “a position can be justified even though it is not correct and … that it can be substantially justified if a reasonable person could think it is correct …” The federal Appeals Court also pointed out that a federal appeals court in another part of the country had looked at the question of whether a prevailing parent was substantially justified in rejecting an attorneys’ fee offer from a local school district. In that case, the school district made an offer for tuition and transportation which the parent rejected because it did not include attorneys’ fees.

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The parties then stipulated to a consent order that did not include attorneys’ fees. The parent then brought a suit for attorneys’ fees in the amount of $70,000. The district court for that region granted the attorneys’ fees request but only in the amount of $7,438. The federal Appeals Court for that region reversed the district court’s decision saying that “a parent is substantially justified in rejecting an offer that does not include the payment of reasonable attorneys’ fees when the district cannot reasonably believe that no attorneys’ fees have accrued”.

Based on this reasoning, the Second Circuit Appeals Court said that it believed that it was “inimical to the purpose of the IDEA to force prevailing parents to accept an offer that they reasonably and in good faith believe fails to provide adequate compensation”. The federal Appeals Court concluded that “a district court may determine that a prevailing parent’s rejection of a settlement offer is substantially justified where the court finds that the parent had a good faith reasonable belief for rejecting the offer”.

The federal Appeals Court reviewed the District Court’s conclusion and the reasons for them, found them clear and supported by the record and found no “abuse of discretion”.

As far as the district’s counter arguments, the federal Appeals Court reviewed and rejected each of them.

H.C. et al v. New York City Dep’t of Educ., 71 F.4th 120 (2d Cir. 2023) Dispute: Parents, who were plaintiffs-appellants, appealed the District Courts’ reductions in the amounts of awarded attorneys’ fee and/or costs.

Conclusion: With the exception of eliminating all fees for attorney travel, the Circuit Court affirmed the District Courts’ reduction in attorneys’ fees awarded.

Basis of the Second Circuit’s Decision: This is a review of a number of tandem appeals to the Second Circuit from a number of District Courts. With respect to this, “parents [had] brought separate federal actions against local educational agencies (LEAs) seeking prevailing-party attorney fees for fees and costs related to administrative proceedings and to the federal actions”. A number of District Courts “concluded that requested fees were unreasonable and reduced attorneys’ fees awards”. The parents appeal.

The Circuit Court first advised that the tandem appeals “concern an important issue in our education law: fee shifting under the [IDEA]”. The Circuit Court stated that “[t]he general question presented is whether the district court abused its discretion in awarding less in attorneys’ fees and costs than requested”. The Circuit Court concluded that it should reverse a district court’s decision to eliminate all travel expenses and remanded that issue. The Circuit Court “otherwise affirm[ed] the District Courts’ awards of attorneys fees and costs”.

As a general matter, the Circuit Court first explained that it reviewed awards of attorneys’ fees for “abuse of discretion”, that its review of such cases is “highly deferential,” that such disputes 82

are “essentially factual matters,” and “that the district courts have a superior understanding of the litigation”. The Court further advised that the “essential goal of fee shifting is to do rough justice [and] not to achieve auditing perfection”. The Circuit Court referenced the Supreme Court’s conclusion “that it can hardly think of a sphere of judicial decision making in which appellate micromanagement has less to recommend it”.

The Court then proceeded with a brief synopsis of relevant attorneys’ fees considerations.

Reasonable attorneys’ fees are provided under the IDEA (See 1415 U.S.C. [I][3][B][I][l]) which “specifies that the reasonable attorneys’ fees awarded shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”. 20 U.S.C. 1415(i)(3)(C). The Court explained that to calculate reasonable attorneys’ fees under the IDEA the “lodestar” method is to be applied (A.R. ex rel. R.V. v. New York City Dep’t. of Educ.,407 F.3d 65, 79 [2d Cir. 2005]), which multiply “the number of hours reasonable expended on the litigation by a reasonable hourly rate” (G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 84 [2d Cir. 1999]). At the same time, the Circuit Court said that “[i]n rare circumstances the district court may adjust the lodestar when it does not adequately take into account a factor that may properly be considered in determining a reasonable fee”. Millea v.

Metro-North R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011). “In determining the first component of the lodestar -- the number of hours reasonable expended – the district court may exclude hours that are excessive, redundant, or otherwise unnecessary”. Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). At the same time, the district court also “has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application”. Id. Regarding the other factor of the lodestar -- the reasonable hourly rate -- the Circuit Court defined that as “the rate a paying client would be willing to pay (Arbor Hill Concerned Citizens Neighborhood Ass’n. v. County of Albany, 522 F.3d 182, 190 [2d Cir. 2008]) after considering all pertinent factors, including the Johnson factors (see Lilly v. City of New York, 934 F.3d 222, 230 [2d Cir. 2019] (referencing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 [5th Cir. 1974).”

Upon review of the cases before it, the Circuit Court concluded “that there was no abuse of discretion in the district courts’ calculation of reasonable attorneys’ fees in each case”. As an example, the Circuit Court reviewed one case and noted that the case considered “recent cases from the Southern District of New York to determine the prevailing market rate for experienced, special-education attorneys in the New York area as the statute required”. The Circuit Court also noted that the District Court in that case had advised that it had “considered all the Johnson factors and it made specific findings as to several of these factors” and in particular, the fact that “the case posed issues that were not especially difficult or novel; the subject matter was not undesirable; and the administrative proceedings took – in total – less than two hours”. The Circuit Court also pointed out that as a result, the District Court “lowered the hourly rates … on these grounds”. The Court of Appeals also concluded that with respect to the number of hours billed, these were “excessive given that the matter lacked complexity” with the result that the “district court reduced the number of hours by twenty per cent”. With both of these factors in 83

mind, the District Court reduced the attorneys’ fees awarded to “a little more than fifty percent” – an amount which the Circuit Court concluded was within the District Court’s discretion.

The plaintiffs-appellants asserted that the District Courts erred by “double deducting” the complexity of the underlying disputes; first, “in the calculation of the number of hours reasonably expended” and second, in the calculation of the “reasonable hourly rate”. The Circuit Court found no error here as it said that the complexity of the underlying dispute affects both lodestar factors and held “that a district court does not err when it considers the complexity of the dispute both when it evaluates the time reasonably expended as well as the reasonable hourly rate”.

The plaintiffs-appellants also asserted that “it was erroneous to reduce its requested award at all because the [district] unreasonably protracted the proceedings”. See 20 U.S.C. 1415 (i)(3)(G).

The Circuit Court reviewed the District Courts’ decisions and found that this rule was not appropriate because “none of the District Courts found as a factual matter that the [districts] did not unreasonably protracted the proceedings”. The plaintiffs-appellants argued that in a number of cases the matter could have proceeded more quickly. The Circuit Court reviewed the circumstances in each case and held that any expansion of the relevant time periods was due to the “disorganization” of the district and not out of any “persist[ence] when there was absolutely no need to continue litigating,” which is what would suggest “unreasonable protraction”. This being the case, the Circuit Court said that “it was not left with a definite and firm conviction that the District Court made a mistake when it found no unreasonable protraction here, so we identify no clear error”. The Circuit Court also concluded that “even if [the district] had unreasonably protracted the proceedings,” the District Court “would not be free to award an unreasonable fee that a party requests” and that it agreed “with those Circuits that have held that when a district court finds that the LEA unreasonably protracted proceedings the statute still requires the district court to conduct a lodestar calculation”. See Somberg ex rel. Somberg v. Utica Cmty Schs., 908 F.3d 162, 181 (6th Cir. 2018).

Regarding prejudgment interest, the plaintiffs-appellants asserted that the District Courts were required to order prejudgment interest. The Circuit Court found the question of whether or not to do so is ordinarily left to the discretion of the district court and that “district courts that declined to award prejudgment interest did not abuse their discretion because delays in payment may be rectified by application of current rather than historic hourly rates (Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 284 [1989])” and that this is what the district courts did in the relevant cases.

Regarding post-judgement interest, two of the plaintiffs-appellants argued that the District Court “erred when it failed to specify an entitlement to post-judgement interest in its judgement awarding fees”. The Circuit Court explained that in accordance with 28 U.S.C. 1961 an “award of post judgment interest is mandatory on awards in civil cases as of the date the judgement is entered”. Therefore, the Circuit Court said that it understood “the District Courts’ order to include post-judgement interest on the awarded fees and costs” and affirmed the judgements based on that understanding”.

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One of the plaintiff-appellants asserted that it should have been granted equitable relief. The Circuit Court affirmed “the District Court’s dismissal of the [plaintiff-appellant’s] claims for equitable relief because the [defendant-appellee Department of Education (DOE)had] complied with the order”. Relative to this, the Circuit Court said that “(1) [t]he DOE has paid the invoices for all [Applied Behavior Analysis (ABA)] provided to the [student]; (2) as required, the DOE developed a new [IEP] that placed the student in a non-public school that provides [ABA] services; (3) there was no requirement that the IEP reference home-based [ABA] and it is undisputed that there are no outstanding invoices for such services; (4) at the time of the complaint, [the student] had not chosen a provider for the [OT] services and the order requires the DOE to fund such services at the parent’s chosen provider; and (5) the DOE confirmed that parent counseling and training services hours were outstanding and that it would pay for such services once [the student] had chosen a provider.”

Last, but very important, the Circuit Court agreed that in one of the cases, the District Court had “abused its discretion when it denied any travel-related fees to [the student’s] counsel”.

Emphasis added. Regarding this, “the District Court reasoned that no fee award for time attributable to travel was warranted because it was doubtful that a reasonable client would retain an Auburn or Ithica attorney over a New York City attorney if it meant paying New York City rates and an additional five hours in billable time for each trip”. The Circuit Court held that “[a] district court may permissibly adjust excessive travel costs … But the district court could not eliminate all of the hours submitted by [the plaintiff’s law firm] as travel time by denying travelrelated fees altogether.” Cruz v. Loc. Union No. 3 of Int’l. Bhd. of Elec. Workers, 34 F.3d 1148, 1161 (2d Cir. 1994). The Circuit Court remanded that case “with instructions to award attorneys’ fees for two hours of travel time [for a round trip] at half the hourly rate the district court otherwise applied of $375, for a total of $375 in travel related fees”.

J.S. v. N. Y. State Dep’t of Corr. and Comty Supervision, Docket No. 21-2447, -4th –, 2023 WL 4938345 (2d Cir. Aug. 3, 2023) Dispute: Was the plaintiff, who was a student with a disability, and who had been successful in an IDEA action when he was 20 years of age, a parent within the meaning of the IDEA such that he was able to recover reasonable attorneys’ fees and costs.

Conclusion: The Circuit Court held that the student was a parent within the meaning of the IDEA and therefore had a right to recover reasonable attorneys’ fees and costs.

Basis of the Second Circuit’s Decision: The fee-shifting provision of the IDEA, 20 U.S.C. 1415(i)(3)(B)(i), allows Courts to award attorneys’ fees and related costs to a prevailing party who is the parent of a child with a disability. “The IDEA defines parent broadly to include, inter alia, foster parents, guardians, individuals acting in the place of a natural or adoptive parent with whom, the child lives, and even more generally, individuals who are legally responsible for the child’s welfare”.

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The IDEA protects children with disabilities who are between the ages of 3 and 21, inclusive. The question here was whether the plaintiff in this case, who is the child with a disability and was 20 years old when he successfully brought an administrative IDEA proceeding on his own behalf falls within the definition of a parent of a child with a disability and as such is eligible for an award of attorneys’ fees and related costs.

The Magistrate Judge and the District Court below concluded that because the language defining who was eligible to receive attorney fees only included a parent and not a student with a disability, then the plaintiff, as a student, was not eligible for attorneys’ fees. To the contrary, the Circuit Court concluded that “the IDEA permits a Court to award fees and costs to [the student] as an individual who is legally responsible for the child’s welfare because as a child with a disability under age 22 and without representation by a guardian, natural parent, or appointed individual, he prevailed in his action on his own behalf seeking required educational services from the defendant”.

The Magistrate Judge recommended that the District Court grant a motion to dismiss. The District Court agreed. The basis of the Magistrate’s and District Court’s decision was that “Congress’ explicit listing of who may sue …should be understood as an exclusion of others from suing”. Consistent with this, the Magistrate and the District Court ruled that “because the feeshifting provision reads that parents of a child with a disability may recover attorneys’ fees …only the parents and not the child may receive or pay attorney fees.”

The Circuit Court disagreed. It began with the proposition that “[w]hen interpreting a statute, we begin by giving effect to the text’s plain meaning, which is informed by, but does not turn solely on, dictionary definitions”. Rather, the Court said that “plain meaning draws on the specific context in which that language is used and the broader context of the statute as a whole”. The Court also pointed out that “[i]f we found the text ambiguous, we may seek guidance from the statute’s legislative history”.

As indicated above, the Court explained that “[t]he text of the IDEA tells us that a prevailing party who is the parent of a child with a disability may bring an action to recover attorneys’ fees … [that] “[t]he parties do not dispute that [the student] is a prevailing party [and that] [t]he only question before [the Court] is whether [the student] falls within one of the statutory definitions of a parent of a child with a disability, in light of the statute’s sweeping definition of parent but its concurrent failure to include expressly a child with a disability within that definition”.

For a number of reasons, the Court concluded “that the statutory phrase defining parent to include an individual who is legally responsible for the child’s welfare covers [the student], who had substantive and procedural rights under the IDEA as a child with a disability and who as an adult had legal authority to vindicate those rights in Court”. The Court further explained that the “Congress gave no textual indication that it meant to exclude persons in [the student’s] situation from the term “an individual who is legally responsible for the child’s welfare and the broader statutory scheme confirms the correctness of [its] interpretation”.

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The Court began by a discussion of the plain meaning of the IDEA’s fee-shifting provision. It pointed out that “[t]he core of [the defendant’s] argument is that the IDEA’s definition of parent includes explicitly enumerated individuals, none of which is the child with a disability himself, and therefore a child with a disability is per se precluded from recovering fees”. The Court said that it was “not persuaded that this inflexible approach takes due account of the language, structure, and context of the statute” and that “Congress expressly assigned a broader meaning to the word parent than the dictionary reflects as a colloquial use”.

With respect to the statutory definition of parent, the Court pointed to the fact that “[o]ne of the statute’s given definition of parent is an individual who is legally responsible for the child’s welfare. The Court pointed out that in this case the child was legally responsible for his own welfare. This was because the child – having reached the age of 18 -- was no longer a minor under state law and therefore, unless incapacitated – which there was no claim or conclusion that he was – was responsible for his own welfare and thus had “legal authority to act on his or her own behalf”. Regarding this, the Court pointed out that in such circumstances “[t]o vindicate his rights under the IDEA [the student] was legally entitled to retain and direct his own attorneys if he did not appear pro se and [h]e could bring the administrative proceeding and this lawsuit in his own name.” The above in mind, the Court held “that the operative phrase in the IDEA – an individual who is legally responsible for the child’s welfare – must be read to include any such individual, including an individual who is a child with a disability and who is responsible under state law for their own welfare”. The Court concluded that unless this were the case, students between the ages of 18 and 21, inclusive, were “hobbled in any effort to vindicate their rights” – a result which “is neither required by the IDEA’s text, intended by Congress, nor consistent with its purposes”.

Regarding the “statutory scheme” the Court concluded that this confirmed “the correctness of [its] interpretation”. With respect to this, the Court pointed out that the IDEA’s provisions “specifically [] guarantees the availability of procedural safeguards not only to parents of children with disabilities but also to the children with disabilities themselves”. The Court pointed out, however, that “[m]any of the procedural safeguards” refer only to parents and not independently to students with disabilities. The Court specifically enumerated the examination of the child’s educational records, participation in meetings concerning the child’s educational needs and placement, obtaining individual educational evaluations, receiving prior written notice in the parent’s native language, and providing a list of all procedural safeguards available. Given this, the Court said that interpreting the word parent as the defendant insists “would have broad and harmful implications: none of these procedural safeguards would be available to children who under state law are adults and who wish to enforce their own IDEA rights”. Nor would the statute’s substantive rights including due process hearings, administrative appeal, and the entitlement to bring suit to enforce their educational rights be available to such children.

Without “a clear congressional statement to this effect”, the Court concluded that this reading of the statute was “untenable”.

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The Court pointed out that much was written about the Supreme Court’s decision in Winkelman in the parties’ briefs. See Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). The student argued that Winkelman was dispositive “because it holds that parents on the one hand and students or children on the other are used interchangeably throughout the IDEA. The Court disagreed that Winkelman was dispositive as in that case it said that “no provision of the IDEA or use in the statute of the term parent or child actually required construction”. Notwithstanding that, the Court held that Winkelman was “persuasive authority [on behalf of the student] … as that case observed that the IDEA includes provisions conveying rights to parents as well as to children”; language tending “to confirm that one of the IDEA’s core purposes is to guarantee a child’s own right to a FAPE; “expressly reject[ing] the proposed inference that parents are excluded by implication whenever a child is mentioned, and vice versa; that Court’s “general view that, under the IDEA the rights of children with disabilities and of their parents should be understood as virtually interchangeable”; and “that the IDEA does not differentiate through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents.”

In light of Winkelman’s language, the Circuit Court concluded that in the fee-shifting context it “did not accept that mere reference to the parent without specific referenced to the child or student sufficed to conclude, based on the statutory text, that children are by implication excluded from fee recovery”.

With the above in mind, the Circuit Court concluded that “the logic and approach of the Court in Winkelman thus reinforce our conclusion that a child with a disability who sues on his or her own behalf and who prevails may recover attorneys’ fees as an individual who is legally responsible for the child’s welfare”.

Regarding legislative history, the Court concluded that “[t]he legislative history [] offers no reason to doubt the soundness or [its] construction of the statute”. It pointed out that when Congress amended the IDEA’s immediate predecessor statute, the Education for All Handicapped Children Act (EHA), “to authorize the award of reasonable attorneys’ fees to the parents or guardian of a handicapped child or youth who is the prevailing party”, the relevant House and Senate Reports both “explain that the proposed statutory term parent is meant to be broader than the traditional definition of parent”. Additionally, the Court allowed that those Reports “further recognize that under appropriate circumstances a child or youth may also bring an action or proceeding under EHA and receive an award of attorneys’ fees to the extent he/she prevails”. Finally, the Circuit Court said that “[t]he legislative history further confirms that the use in the fee-shifting provision of the phrase who is the parent of a child with a disability to modify a prevailing party serves only to distinguish the parent from the educational agency, rather than to cabin the types of plaintiffs who may recover fees”.

Finally, the District Court found that “the Spending Clause argument” bound it to the defendant’s position. The defendant “presse[d]” this argument to the Circuit Court. So that it is understood, the argument is that “Spending Clause legislation like the IDEA takes on the nature of a contract 88

and accordingly a recipient of federal funding must voluntarily and knowingly accept the conditions imposed by the statute. A state cannot knowingly accept conditions of which they are unaware or which they are unable to ascertain. Rather, to be enforceable, the statute must provide clear notice of the liabilities; if it does not, the court may not make an award against the state”.

Consistent with this, the defendant argues that “because the child with a disability is not explicitly identified in the IDEA as a party who may be awarded fees, the state has no “clear notice” of its liability and the court is precluded from making such an award.

The Circuit Court disagreed. It stated that “states are on notice that if they fail [to provide a student with a FAPE] they may be subject to administrative and judicial proceedings and that if they lose, they may be liable for the attorneys’ fees of a prevailing party who is the parent of a child with a disability”. They are also aware the Court said that the IDEA defines a parent broadly to include an individual who is legally responsible for the child’s welfare. And that they are also on notice that “well over a decade ago” the Supreme Court in Winkelman rejected “the notion that children are excluded by implication whenever the IDEA uses the term parent”.

The Circuit Court said that “[i]n light of these known obligations” and for all other reasons set out above, “a state official would clearly understand that one of the obligations of the IDEA is to compensate for their attorneys’ fees those who prevail in their IDEA claims, under whichever sub-definition of parent the individual qualifies”. The Circuit Court went on to say that Congress is not required to “prospectively resolve every possible ambiguity concerning particular applications of a statute before a state will be deemed to have accepted a condition of federal funds” and that it is the “notice of liability for a prevailing party’s attorneys’ fees, not the precise identity of the prevailing party that is of operative significance”. The Circuit Court said that “[b]ecause we conclude that the plain meaning of an individual who is legally responsible for the child’s welfare includes the adult child, any objections based on the Spending Clause falls short” and that the relevant provisions “give the states ample notice of a possible obligation to pay fees to a prevailing individual bearing responsibility, like [the student], for the welfare of a child with a disability”.

In a concurring opinion, Circuit Judge Cabranes wrote that in his view, “the simplest disposition of this case would be to hold that [the student] can seek attorneys’ fees under the IDEA because the Supreme Court concluded in Winkelman that the IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents”.

K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) Dispute: The extent and amount of attorney’s fees.

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Conclusion: The Court found that it was appropriate to award attorney’s fees. It awarded less than the parent requested and more than that which was recommended by the district.

Basis of the Court’s Decision: The Court pointed out that the IDEA provides for the opportunity for a parent to recover attorney’s fees and that such assists in “ensuring that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs”. In this case, the Court concluded that the parent was the prevailing party and performed a service for the parent and for the child and is entitled to reasonable attorney’s fees and costs.

The “presumptively” reasonable attorneys fee is determined by a reasonable hourly rate multiplied by the number of hours reasonably expended on the matter and that “no bonus or multiplier may be used in calculating the fees awarded.”

With respect to hourly rates, “the statute mandates that the fees awarded shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”. “The reasonable hourly rate is the rate a paying client would be willing to pay …bearing in mind that a reasonable paying client wishes to spend the minimum necessary to litigate the case effectively.” “Within this framework, district courts determine a reasonably hourly rate by considering all pertinent factors, including the Johnson factors”. 8 The parent was represented by the Cuddy law firm. The Court concluded that the appropriate hourly rate for Andrew Cuddy was $ 420 an hour, for Jason Stern and Michael Cuddy, $ 400 an hour, for Benjamin Koop and Kenneth Bush, $ 250 an hour, and for Raul Velez $ 200 an hour.

With respect to paralegal services, the Court found that Shobna Cuddy and Sarah Woodard should be paid $ 125 an hour and the other paralegals $ 110 an hour. The Court concluded that the rates were “consistent with the rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished and with those the Court has found reasonable in the past for comparable work performed in the roughly comparable time period”. Moreover, the Court found that these rates “are consistent with the seniority and experience level of each of the professionals”. Regarding that, the Court pointed out that Andrew Cuddy had been employed at the law firm for 25 years, Michael Cuddy for 13 years, Benjamin Koop for 4 years that Jason Stern was employed at the firm for 15 years; Kenneth Bush was employed at the firm for 3 years, and Raul Velez was admitted to practice 3 years before. With The Johnson factors are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Hwy Express Inc., 488 F. 2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v.

Bergeron, 489 U.S. 87, 109 (1989).

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respect to the paralegals, the Court found that Sarah Woodard and Shobna Cuddy were “comparatively senior” and that the rest of the paralegals were “junior”. The Court further found that the rates for the attorneys were consistent with the Johnson factors. In particular, the Court concluded that “counsel frequently is required in due process hearings” and that the law firm took the matter on a “contingency basis and assumed some risk”. Additionally, the results obtained were “relevant.” However, the Court also pointed out that that “the questions presented were not particularly novel or complex” and that after the first impartial hearing the others were “somewhat rote”. Additionally, the Court said that “[a]lthough the law firm is entitled to some return on its investment in legal capital, and the approved rate must be sufficient to attract others to the practice, it nonetheless also is true that [the law firm] attorneys involved were able to recycle work that the firm previously had performed in order to deliver these services”. Also, “[t]he case was not that particularly unattractive”. The Court also said that the “fee must not be so disproportionate to rates available elsewhere in the market so as to deter others from entering the field” and that the fees suggested by the district were “not sufficient” “to further that important purpose”. The court further agreed that the rates were lower than set out in a report submitted by the parent’s “expert”. Regarding this, the Court described the report as “of limited weight” because it offered advice “on an ultimate issue before the court and was therefore not admissible”. The Court also said that the person who prepared the report “has not demonstrated he has any particular expertise on the issue of IDEA litigation and that opinion would be of limited weight”. Further, the Court said that that the underlying facts relied on by the author of the report do not support that [the law firm’s] rates are reasonable”. Regarding this, the Court pointed out that “[t]he question before the Court is not whether [the law firm] has been able to extract higher fees from paying clients than that which the Court has approved here but whether the fees it charges are the prevailing rates in the community”. Further, “[t]he fact that certain clients might have agreed at a point in the past that [the law firm] should be paid at a particular rate does not establish that rate is reasonable”. Regarding the three firms that the author of the report cited, the Court said that “the evidence before the Court fails to establish the work that they did was comparable to the work [the law firm] was required to do in this case”.

Here, the Court said that “the evidence of fees sought in other cases is of limited weight because the evidence either does not substantiate that such rates were actually paid (verses claimed) or where rates are asserted to be actually paid, does not provide relative context for such rates billed”. The Court explained that the district argued for lower rates and relied “virtually exclusively on fees awarded on other IDEA cases”. The court said that such was relevant to the Johnson factors but “cannot alone determine” what is appropriate in this case” and that the district’s argument suffered from “the flaw of circularity”, meaning that if one just looked at previous fees, then no court would have to ask what the reasonable rate in the community was and rates would stay the same and stagnate over time. Citing to authority, the Court said that “recycling rates” “may create disparity between compensation available under the fee shifting statute and compensation available in the marketplace” which would “defeat[] the objective of the fee-shifting feature of the IDEA to attract competent counsel to a field where many [parents] with meritorious cases could not afford to pay such counsel themselves”.

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With respect to the number of hours reasonably expended, “[t]he Court’s task is to make a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended”. Relative to this, a court should not become a “green-eyeshade accountant” for the goal of shifting fees is to do “rough justice” and not to achieve “auditing perfection”. It is the “fee applicant” who “bears the burden of establishing entitlement to an award and documenting the appropriate hours expended…”. In particular, upon review, the Court reduced the travel time in all circumstances to one hour in each direction and cited authority that this was “well-founded”. Further, the Court pointed out that in some cases the parent’s attorneys billed for administrative tasks which could have been done by a paralegal. The Court also found that the hours billed on the federal attorney’s fee litigation “were excessive”. Citing to the Supreme Court, the Court said that “the determination of fees should not result in a second major litigation”. With respect to the “instant motion” the Court found that the time spent to be “unreasonably high” in that the briefing “reiterates arguments made by [the law firm] in other cases”. The law firm is not entitled to be “paid repeatedly for essentially reiterating arguments it has made before”.

Regarding the preparation of the papers between the time the summary judgment motion was filed and the time of the reply papers, the Court found that such time was “excessive”. With respect to the motion to compel, the Court said that the relevant information could have been obtained by telephone calls rather than to seek the Court’s intervention. With respect to the parent’s attorney’s 10-page reply memorandum and its 40 pages of declarations, the Court pointed out that the declarations were “in excess” of the page limits set by the Court for reply papers and “improperly included argument”. Additionally, the Court said that most of that argument “could have been submitted in connection with the [the parent’s opening papers or if not should have been submitted only upon motion”. The Court said that most of the argument in the declarations were “repetitive” of that contained in the reply memorandum of law.

Regarding time spent, the Court admitted that time could be spent “explaining why the hours spent at the administrative level and at the federal level were reasonable [b]ut those hours should not be many” and “it would not have taken research for counsel to recall how he spent time and why the request he had made was reasonable”.

The parent’s counsel argued that its “billed time or hourly rates” should not be reduced as the district “unreasonably protracted the final resolution of the action or proceeding”. The Court said that the asserted statute “does not entitle the parent to more than an award of reasonable attorney’s fees and costs. In any event, the Court said that the “undisputed evidence does not reflect that the [district] unreasonably protracted the proceedings”.

Regarding costs, upon challenge, counsel for the parent eliminated the request for reimbursement for lodging and meals as well as for faxing and applied a 70% reduction in travel expenses in the form of mileage, tolls, and parking. Copying costs were also reduced to 10 cents a page.

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With respect to pre-judgment interest, the parent “argues that she should receive pre-judgement interest to account for the time-value of money and [the district’s] delay in paying the reasonable attorney’s fees to which [the parent] is statutorily entitled to”. Regarding this, the Court advised that it had previously “determined that pre-judgement interest is not available on an award of attorney’s fees under the IDEA”. The Court also said that “[e]ven if the Court has discretion to award pre-judgment interest, it would find that [the parent] is adequately compensated by the [attorney’s fee] award as modified. The parent was however entitled to post-judgement interest.

N.G.B. v. New York City Dept of Educ., 20-cv-6571 (JGK), 2022 WL 800855 (S.D.N.Y Mar.16, 2022) Dispute: Whether the parents should receive attorney’s fees and costs in the amount requested.

Conclusion: The court granted the parents’ requests for attorney’s fees and costs but reduced the amount and type.

Basis of the Court’s Decision: The Court explained that “under the IDEA, the court in its discretion, may award reasonable attorney’s fees as part of the costs to a prevailing party who is the parent of a child with a disability, based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”. “Additionally, “[t]he court may award fees for work on the fee application itself”. “To calculate a presumptively reasonable fee, a court determines the appropriate billable hours expended and sets a reasonable hourly rate”. “In making these determinations, a court should step into the shoes of a reasonable, paying client who wishes to pay the least amount necessary to litigate the case effectively”. “However, trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees … is to do rough justice, not to achieve auditing perfection”. “A district court may exercise its discretion and use a percentage deduction as a practical means of trimming the fat from a fee application”.

In this case, “[t]here is no dispute that the parents were the prevailing parties and that they are entitled to recovery under the IDEA”. The dispute here is “whether the rates, hours, and costs billed by the [parents’ attorneys] were reasonable.” “The determination of a reasonable hourly rate contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel, an inquiry that may include judicial notice of the rates awarded in prior cases and the court’s own familiarity with the rates prevailing in the district” “In determining a reasonable hourly rate, courts must also consider the factors articulated in Johnson v. Ga. Highway Express, Inc. 679 F.2d 714 (5th Cir, 1974). 9” “A court need These factors include (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal serviced properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases”.

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not make specific findings as to each factor as long as it considers all of them when setting the fee award”.

In this case, the parents seek fees for five attorneys. The first two included the founder and managing attorney” of the parents’ law firm who “[had been] litigating special education cases since 2001”. The second attorney “has concentrated in the area of special education law since 2005”. The parents requested hourly rates of $ 550 for these attorneys. The Court said that “[c]ourts in this district have awarded these attorneys and attorneys with similar levels of experience around $ 350 per hour in cases such as this one, where certain issues before the IHO were uncontested, the hearing was relatively short, and the [district] introduced no documentary evidence and few if any witnesses”. However, the Court said the parents’ attorneys “argue persuasively that some increase is appropriate in view of the passage of time and inflation”. The Court found that for these attorneys, “considering the parties’ arguments, the evidential submissions, and the Johnson factors, an hourly rate of $ 425 per hour [was] reasonable”.

With respect to the three other attorneys, the parents sought $ 425 per hour for the first and third attorneys and $ 400 per hour for the second. The first attorney “was first admitted to practice law in 2015 and worked at [the firm] from 2016 until his departure in January 2019”.

The second attorney had the most experience in this group and had several years of specialized experience in special education law. The third attorney was “admitted to practice law in 2016 and worked for two years, practicing general litigation at a different firm” before joining the parents’ attorneys’ firm. Taking into account “the parties’ argument, the evidentiary submissions, and the Johnson factors, the Court found that the first and third attorneys should be paid at a rate of $ 225 per hour and the second attorney at a rate of $ 300 per hour.

The parents sought fees for three paralegals in the amount of $ 225 00 per hour. The Court said that one of the paralegals was defined as “a senior paralegal” who had “significant experience working as a paralegal and office manager” at the firm and that the other two “had relatively less experience” than the first. “[C]onsidering the parties’ arguments, the evidentiary submissions, and the Johnson factors, the Court decided that a rate of 125 dollars per hour was reasonable for the “senior” paralegal and a rate of $ 100 an hour was reasonable for the other two.

Regarding the attorneys and the time spent on the two matters, both for the administrative proceeding and the attorney’s fee action, the parents sought payment for 55.2 hours in connection with the administrative proceedings and 87.4 hours in connection with the federal action.

The Court found that the number “of hours billed in connection with the administrative proceedings [was] excessive and warrant reduction”. “In view of the brevity of the hearing, the [school board’s] decision not to submit evidence at the hearing, and the apparent lack of complexity of the matter” the Court found that “a twenty percent reduction of the hours spent in connection with the administrative proceedings, exclusive of travel, [was] appropriate”.

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One of the attorneys billed ten hours for travel. The Court said that this should not be awarded at all “because a hypothetical reasonable client would not be willing to pay for such travel”. The Court reduced the amount to two hours.

With respect to the attorney’s fees action, the court held that the number of hours billed was “likewise excessive”. The Court held that “when considering all the relevant circumstances, a twenty percent reduction of time billed litigating [the attorney’s fees action] is appropriate”.

The parents sought, among other things, costs for copies, faxes, lodging and mileage. Regarding copying and fax charges, the Court said that the copying costs request by the parents was “unlikely to be ordinarily charged to clients”. Being reasonable, the Court said that “the award for copying costs [was] reduced to 10 cents a page” instead of fifty cents a page. “Although courts have not paid for fax charges as documents can be e-mailed at no cost”, “the parents represent that [the district] and certain schools only accept necessary records requests via fax” and requested two dollars per page. The Court found this request unreasonable and reduced the amount charged for fax transmissions to ten cents per page. With respect to lodging expenses, Court said that “[c]ourts in this district routinely decline to award lodging expenses, explaining that a reasonable client would not agree to pay in-district attorney rates while also paying for extensive lodging expenses necessitated by out-of-district attorney’s travel” and deducted the request for lodging costs. Regarding mileage, the Court said that the parents’ request was unreasonable and that “[a] reasonable paying client would expect their counsel to take public transit or some form of commuter rail to attend any hearings, rather than drive long distances and to incur high mileage costs”. The Court reduced the mileage chargers to $ 60.

The parents also sought “pre-judgement interest” in the award of attorney’s fees and costs. The Court said that it “has taken any delay into account when determining the reasonable hourly rates that [the firm’s] attorneys and paralegals should be awarded”.

Regarding “post-judgment interest”, the Court granted the request as it held that “[p]ursuant to 28 U.S.C. Section 1961, the award of post-judgement interest is mandatory in awards in civil cases as of the date judgment is entered”.

S. J. v. New York City Dep’t of Educ., 21-240-cv, 2022 WL 1409578 (2d Cir. May 4, 2022) Dispute: Did the District Court properly rule on plaintiff’s request for attorneys’ fees.

Conclusion: The Circuit Court held that the District Court properly ruled on plaintiff’s request for attorneys’ fees.

Basis of the Court’s Decision: The Circuit Court explained that it reviews a district court’s findings relative to an attorneys’ fees matter based on an “abuse of discretion” standard which is “highly deferential” to the district court and that in such a context, “appellate micromanagement” is not appropriate. “[A] district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or 95

(3) reaches a conclusion that, though not necessarily the product of a legal error or clearly erroneous factual finding, cannot be located within the range of permissible decisions”.

The Circuit Court explained that generally in a proceeding brought under the IDEA a court “may award reasonable attorneys’ fees to a prevailing party who is the parent of a child with a disability” and further, that “[s]uch fees must be reasonable and based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished”. “The Circuit Court explained that “[w]ithin this framework district courts determine a reasonable hourly rate by considering all pertinent factors, including the Johnson factors as articulated in Johnson v. Georgia Hwy. Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 (1989) and then multiply that rate by the number of hours reasonably expended to determine the presumptively reasonable fee”.

With respect to the district court’s fee decision, the Circuit Court found “no abuse of discretion”.

In particular, the Circuit Court found that “the hourly rates assigned to [the parent’s] attorneys, including the associates, [were] reasonable and align with what similarly qualified attorneys would receive in a matter of comparable complexity in the district”. The Circuit Court said that further, the “district court properly exercised its discretion with respect to the rates by considering, among other things, the experience level of the attorneys as well as the fact that [the parent] prevailed in an uncontested proceeding that lasted less than two hours and focused on relatively straightforward issues”. According to the Circuit Court, “[t]he district court also did not abuse its discretion in reducing the hours [the parent’s] attorneys billed to the federal litigation based on a finding that a competent attorney should not have needed more than this amount of time to litigate the fee petition”. The Circuit Court further concluded that “the district court was well within its discretion in reducing the award of photocopying costs, as well as denying reimbursement for attorneys’ time to serve process”. The Circuit Court also held that there was no basis “to disturb the district court’s determination that, assuming the Court has discretion to award prejudgment interest, the Court agrees with the [Magistrate’s report and recommendation] that [the parent] is adequately compensated by the award as modified”.

H.C. v. New York City Dept of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195 (S.D.N.Y. June 17, 2021) Dispute: Whether the requested attorneys’ fees and costs in the amount of $92,521.19 should be approved.

Conclusion: The Court approved attorneys’ fees and costs in the amount of $38,951.

Basis of the Court’s Decision: This case does not apply to the extent to which a parent has prevailed as both parties admit that the parents did so. The issue here is the amount of attorneys’ fees and costs that should be awarded by the Court to the parents. The court will calculate “a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours”.

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First, with respect to hourly rates, courts need to consider both the prevailing market rates for such legal services as well as the case-specific factors articulated in Johnson v. Ga Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See also Arbor Hill Concerned Citizens Neighborhood Ass’r v. City of Albany, 522 F.3.d 182, (2d Cir. 2008). Further, the Court pointed to Arbor Hill for the proposition that “a court must step into the shows of the reasonable paying client, who wishes to pay the least amount necessary to litigate the case effectively”.

The lead counsel in the two administrative proceedings and who was also the lead counsel in this attorneys’ fee proceeding was admitted to practice in June of 2011 and has practiced “litigation” since that time. The attorney joined the Cuddy Law Firm (CLF) in 2014 and specializes in special education law. The CLF requested $400/hr. for legal time and $200/hour for travel time. The Court considered the Johnson factors and awarded the attorney $300/hr. for legal time and $150/hour for travel time. The parents seek $500/hr. for three “senior attorneys”. The prevailing market rate for experienced special education attorneys in the New York-area circa 2018 is between $350 and $475/hr. Given that the administrative proceedings here were minimally contested, in accordance with the Johnson factors, the Court ordered an hourly rate of $360/hr. For associates with three or fewer years of special education experience courts have typically approved rates of $150-$275/hr. In this case, fees were requested for the work of an “associate” who was admitted to practice law in 2009, and who practiced general litigation from 2009 until joining CLF in 2018. Consistent with the Johnson factors, the court ordered payment for the work of this CLF associate of $200/hour. Regarding a second associate, both parties agreed that her work should be paid on the basis of $100/hr. The parents also seek fees for work performed by several paralegals. The court found that $100/hour to be a “reasonable” hourly rate.

Second, regarding hours spent, a court should compensate only for hours that were “reasonably expended”. It “should exclude excessive, redundant or otherwise unnecessary hours”; whether it was “particularly complicated” or “involved any significant legal issues”. Courts have “ample discretion. They should not become “green-eye accounts. To calibrate an appropriate award the court may either attempt to identify “specific hours that should be eliminated or it may simply reduce the award by a reasonable percentage”. For the first administrative proceeding, the Court reduced the number of attorneys’ fees hours requested by 20%. With respect to the first administrative proceeding, the Court found that a 20% reduction in the amount of time requested by the parents was appropriate. This was based on the fact that the hours spent preparing the DPCN were excessive, several hours billed were for tasks that were “administrative and/or secretarial in nature”, and time spent reviewing and editing billing statements for “clarity” was not compensable. With respect to travel time” from Auburn to Brooklyn, the Court awarded 2.5 hours in each direction. Regarding the second administrative proceeding, the district requested a 20% reduction in the fee hours and the Court agreed. This represented a reduction in the hours billed due to the similarity in the due process complaint notices in the two proceedings, attorney billing for tasks that were “seemingly administrative or secretarial”; and 97

the narrowed scope of the second hearing compared to the first. Regarding travel time, this was limited to five hours or two- and one-half hours in either direction.

With respect to the federal court attorneys’ fees litigation, the Court found that the hours billed to prepare the complaint was excessive and that a reduction of 20% was appropriate. The Court also found that no fees should be awarded for work done after October 7, 2020 because of the district’s $40,000 October 7, 2020 offer of settlement and the fact that the plaintiffs were entitled to $37,984.40 in attorneys’ fees and costs through October 7, 2020.

Regarding costs and expenses a prevailing party is entitled to reasonable costs. The Court declined to award any lodging expenses. The Court rejected the parent’s request for transportation costs. The Court concluded that “legal counsel attending a hearing in Brooklyn would likely take public transit, commuter rail, or a short car ride”. The Court held that $50 each way to be reasonable transportation costs. The Court also denied the parent’s request for payment of parking costs. Regarding copying costs, the Court found the parent’s request for 50 cents per page “excessive” and ordered payment of 10 cents, which it found was ”entirely reasonable”. The Court also found that the requested fax costs to be “unreasonable” as “modern copy machines” have the ability to scan documents so that they can be e-mailed, a procedure that costs “virtually nothing”.

Finally, and with respect to “post-judgment interest” the Court pointed out that “the award of post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered”

ASSIGNED SCHOOL –NOTIFICATION Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) 10 Dispute: Whether contact number errors in the school location letter, the acknowledgment thereof by the district, and the otherwise failure of the district to respond to requests for information relative to the assigned public-school site was a denial of a FAPE. Conclusion: The IHO held that contact number errors in the school location letter, the acknowledgement thereof by the district, and the otherwise failure of the district to respond to requests for information relative to the assigned public-school site contributed to a denial of a FAPE to the student.

This SRO decision addresses in relevant part procedural issues relating to (1) the sufficiency of evaluative information; (2) the parent’s receipt of the IEP; and (3) the availability of information regarding the assigned publicschool site relative to the school location letter. As indicated above, the SRO did not find that issues relating to the availability of information regarding the assigned public-school site relative to the school location letter resulted in a denial of a FAPE alone. However, the SRO also concluded that each of the three issues “contributed to” the violation of a FAPE; which is to say that these three procedural issues when taken together or on a “cumulative” basis resulted in the denial of a FAPE to the student. See L.O. v. New York City Dep’t of Educ., 822 F.3d. 95,12324 (2d. Cir. 2016); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012).

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Basis of the SRO’s Decision: In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a 12-month program, a highly structured learning environment and had needs relating to behavior management, language development, and social skills. “[T]he parent asserts that the school location letter [is] deficient as it did not contain the correct contact information for the assigned school” and further, “that the assigned school failed to respond to her attempts to contact and obtain information from the school”. “The district acknowledges that the contact information was incorrect but argues that the parent did not detail her attempts to contact the school or demonstrate what information she was attempting to obtain. Additionally, the district asserts that, in any event, a parent does not have an unqualified right to visit an assigned school”.

Regarding the parent’s right to receive information about an assigned school site, “OSEP has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children”. Letter to Mamas 42 IDELR 10 (OSEP 2004). See also J.B. v. New York City Dep’t of Educ., 242 F. Supp. 3d 186, 195 (E.D.N.Y. 2017); J.C. v. New York City Dep’t of Educ., 2015 WL 1499389 at *24 n. 14 (S.D.N.Y. 2015). “On the other hand, there is [extensive] district court authority indicating that a parent has a right to obtain information about an assigned publicschool site ... in order to evaluate whether the IEP can be implemented at the proposed location”.

See H.L. v. New York City Dep’t of Educ, 2019 WL 181307, at *9 (S.D.N.Y. Jan 11, 2019); F.B. v.

New York City Dep’t of Eduic.,132 F. Supp. 3d 522, 538-45 (S.D.N.Y. 2015); V.S. v. New York City Dep’t of Educ., 25 F. Sup. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. v. New York City Dep’t of Educ., 23 F. Supp. 3d 210, 227-29 (S.D.N.Y. 2014).

In this case and regarding the district’s claims that the parent failed “to provide sufficient detail with respect to her attempts to contact the assigned school”, the SRO found that “the parent informed the district in her 10-day notice … that she had called these contact numbers repeatedly, and left messages, but had not received a response and she also explicitly requested information as to how to receive information about the proposed program … or arrange for a visit”. Further, as indicated above, the district acknowledged “that the school location letter contained an incorrect phone number and that this caused a continuous issue affecting the assigned school and the district office”.

Notwithstanding this, the SRO pointed out that “the district did not respond to the parent or otherwise attempt to connect the parent to the school for the purpose of the parent receiving more information concerning the assigned school site”.

Further, as indicated above, the SRO pointed out that “[w]hile the district may be correct that a parent does not have a general entitlement to visit a proposed school, it [the district] also acknowledges in its answer that, in accordance with some of the case law cited above, a parent 99

has a right to obtain information about an assigned public-school site”. Regarding the claim that the parent did not “demonstrate what information she was attempting to obtain”, the SRO pointed out that the district did “not cite any authority for the proposition that the parent must particularize his or her questions or concerns in order to find that a district impeded the parent’s ability to gain information from the assigned school”. With respect to this, the SRO pointed out that “[h]ere, the parent requested both a copy of the IEP and a means of contacting the assigned school to obtain additional information about the school and/or to arrange a visit”. The SRO also pointed out that “[t]he district [did] not dispute that it was obligated to provide the parent with a copy of the April 2020 IEP and also acknowledges that the parent had a right to obtain information about the assigned school”. The SRO concluded that “[d]espite being informed of the parent’s lack of an IEP or an effective way to contact the school, the district failed to provide the parent with either” The SRO held that “[a]s a result, the district’s failure to respond to the parent’s request for further information regarding the assigned school also contributed to a denial of a FAPE to the student”.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Was the parent’s lack of receipt of the bricks and mortar location of the special education program and related services in the student’s IEP a denial of FAPE. Conclusion: The SRO reversed the IHO and concluded that the parent did not receive information setting forth the bricks and mortar location of the special education program and related services in the student’s IEP and thus there was a denial of FAPE. Basis of the SRO’s Decision: “The parent asserts that the district’s failure to transmit a school location letter prior to the start of the … school year deprived him of a meaningful opportunity to participate in the placement of the student resulting in a denial of FAPE”.

“When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE’s educational placement recommendation.” And, “there is no requirement in the IDEA that a student’s IEP name a specific school location”. Further, “parents generally do not have a procedural right in the specific locational placement of their child”.

“On the other hand, there is [extensive] district court authority indicating that a parent has a right to obtain information about an assigned public school site ... in order to evaluate whether the IEP can be implemented at the proposed location”. See H.L. v. New York City Dep’t of Educ, 2019 WL 181307, at *9 (S.D.N.Y. Jan 11, 2019); F.B. v. New York City Dep’t of Educ.,132 F. Supp.

3d 522, 538-45 (S.D.N.Y. 2015); V.S. v. New York City Dep’t of Educ., 25 F. Sup. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. v. New York City Dep’t of Educ., 23 F. Supp. 3d 210, 227-29 (S.D.N.Y. 2014).

With this in mind, “although not explicitly stated in federal or State regulation, implicit in a 100

district’s obligation to implement an IEP is the requirement that, at some point prior to or contemptuously with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student’s IEP”. See T.C. v. New York City Dep’t of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016); Tarlowe v. New York City Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008). ”While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation…it none the less follows that it must be shared with the parent before the student’s IEP may be implemented”.

In this case, “the district did not offer evidence during the impartial hearing to demonstrate that it provided the parent with notice of the school to which it assigned the student prior to the [] school year”. The IHO found that a school location letter “would be futile”, because at the CSE meeting “the parent rejected any district public school placement. The SRO reviewed the facts and determined that the IHO’s finding was “not support[ed]” by the record. In this regard, “the parent [had] indicated that he had not yet received a school location letter and therefore had been unable to sufficiently evaluate a proposed placement”. The SRO pointed to the fact that ‘[t]here was no indication in the hearing record that … the district provided the parent with school assignment information for the student”.

The SRO concluded that “[b]ased on the above, there is insufficient evidence in the hearing record to show that the district met its obligation to notify the parent in some form regarding where or how the student could access his IEP services”. The SRO said that such “constitute[ed] a procedural error, which under the circumstances presented resulted in the parent being provided with too little information as to how or where the recommended special education program would have been implemented and, therefore, resulted in a denial of FAPE”.

Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) Dispute: Whether the district provided the parents with notice of the student’s assigned school and if not, whether that deprived the student of a FAPE. Conclusion: The SRO upheld the IHO’s finding that the district did not properly provide the parents with notification of the student’s assigned school and that this was a denial of FAPE. Basis of the SRO’s Decision: A district is required at some point prior to or contemporaneous with the date of initiation of services under the IEP to notify parents in a reasonable fashion of the bricks and mortar location of the special education program and services in the student’s IEP. As set forth below, the absence of such notification is a denial of FAPE.

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The district held a CSE meeting “on December 11, 2019 to develop an IEP for the student for the remainder of the 2019-20 school year and a portion of the 2020-21 school year”. The student’s mother testified that she never received a response to her August 2020 letter and that she did not receive the IEP or a school location letter. She testified that “she first saw the December IEP and the school location letter in April 2021, during the course of the impartial hearing”. She also testified that “there came a time when her husband did find the email from the district with the school location letter; however, but that because her husband had never been the point of contact for the district, and she had been”, her husband merely put it amongst his papers.

Further, according to the evidence at the hearing, “the district used an incorrect email address for the mother and sent the student’s school location letter to that incorrect email address”.

The SRO also concluded that the IHO correctly found that the “district’s attempt to deliver the school location letter via email was not in accord with its own practices and was not reasonably calculated to provide the parents with notice”. In particular, according to the FAQs on the district’s website, “documents may be sent to a parent via email after getting the parent’s consent to receive documents via email”. The website “further indicated steps that should be taken to obtain a parent’s consent for communication via email, including attempting to reach the parent by telephone”. Here, “[t]he student’s mother testified that the CSE had not communicated with the student’s father to obtain his email address and consent to provide documentation by email”. “The student’s mother also testified that the district had not ever requested permission or consent to communicate with her via email”. The record also showed that notwithstanding that the district had the parents’ mailing address and that it had previously provided “important” documents such as IEPs or school location letters “by mail”, in this case, the district appeared to have elected to only email those documents to the parents without even a follow-up telephone call.

The SRO concluded that “the district failed in its obligation to notify the parents, either in writing or orally, as to where or how the student could access his IEP services despite efforts made by the parents to obtain that information from the district.” The SRO held that this was a “procedural inadequacy” which “resulted in the parents being provided with too little information as to how or where the recommended special education program would have been implemented and therefore resulted in a denial of FAPE”.

V.A. v. New York City Dept of Educ.,20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) Dispute: Does the proof show that the district issued a “school location letter” to the parent.

Conclusion: The proof did not show that the district issued the parent a “school location letter”.

Basis of the Court’s Decision: The IDEA requires that the IEP include the frequency, location, and duration of the services to be provided. See 34 CFR 300.320(a)(7)”. Consistent with this, a school location letter advises the 102

parent of which school the student is slated to attend. And “the Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow. T.Y. New York City Dept of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); see also C.F. 746 F3d 68, 79 (2d 2014).” However, and citing cases, the Court concluded that the “school designation cannot come so late that it impedes the parents ’ability to participate meaningfully in the school selection process”. See S.Y. v. New York City Dept of Educ.,210 F.Supp, 3d 556, 574-75 (S.D.N.Y. 2016); see also F.B. v. New York City Dept of Educ. 132 F.Supp. 3d 522, 541-43 (S.D.N.Y. 2015); C.U. v. New York City Dept of Educ., 231 F. Supp. 3d 210, 227 (S.D.N.Y. 2014). The Court also opined that it “[o]bviously follows” that a school district commits a procedural violation when it fails to send a school location letter at all”. See C.U. 23 F.Supp. 3d at 228. The Court also cited to the SRO’s finding that “in light of the immense size of the district in this case, it [was] reasonable to hold that the district was required to notify the parent where the IEP services would be implemented before the IEP went into effect as part of its obligations to implement the student’s services” 11.

In this case, the district asserts that it mailed a school location letter to the parent on July 12, 2018. Meanwhile, the parent sets forth that she never received such a letter. In relevant part, the IHO and/or the SRO asserted that the evidence showed (1) the “actual mailing” of the letter on July 12 and (2) that the facts showed a presumption arising under New York state law that the letter had been mailed on July 12. Upon extensive review of New York state law, the Court found that the IHO and SRO did not have sufficient evidence to support the view that actual mailing of the letter had taken place or that the presumption of mailing the letter in accordance with New York state law applied. See V.A. v. New York City Dept of Educ., 20 CV-0989(EK)(RML), 2022 WL 1469394 at *7 - *11 (E.D.N.Y. May 10,2022). This being the case, the Court held that the record did not show that the district provided the school location letter to the parents prior to the beginning of the school year.

A procedural violation will deny the student a FAPE “if [it] impeded the child’s right to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process, or caused a deprivation or educational benefits”. The Court held that here, “the failure to identify any school at which the IEP services would be provided constituted a serious procedural error”. With appropriate citations, the Court held that “[m]oreover the failure to identify a school meant that [the parent] was unable to arrange for a visit to the school or to inquire about its facilities or programs (C.U. 23 F.Supp.3d at 228)4 or otherwise Citing to relevant authority, the SRO has also found that the district has an “obligation to notify parents, either in writing or orally, as to where or how the student [can] access his IEP services” and that the failure to do this is a violation of the student’s right to a FAPE. See Application of the Dept of Educ, Appeal No. 21-184 (Oct. 27, 2021); see also T.C. v New York City Dept of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016);,Tarlowe v. New York City Dept of Educ., 2008 WL 2736027 at *6 (S.D.N.Y. July 3, 2008); M.O. v. New York City Dept of Educ.

793 F.3d 236, 244-45 (2d Cir. 2015); H.L. v. New York, City Dept of Educ, 2019 WL 181307 at *9 (S.D.N.Y. Jan. 11, 2019); F.B. v. New York City Dept of Educ., 2015 WL 5564446 at *11-*18 (S.D. N.Y. Sept. 21, 2015); V.S. v.

New York City Dep’t of Educ. 25 F.Supp. 3d 295, 299-301 ( E.D.N.Y. 2014); C.U. v. New York City Dept of Educ., 2014 WL 2207997 , at *14-*16 (S.D.N.Y. May 27, 2014).

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meaningfully participate in the school selection process”. (F.B. 132 F. Supp. 3d at 542)”.The Court concluded that “because this procedural violation significantly impeded [the parent’s] opportunity to participate in the decision-making process concerning the provision of a FAPE, this procedural violation constitute[d] a denial of FAPE

BEHAVIOR APPLIED BEHAVIOR ANALYSIS (ABA) Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent submitted evaluative data to the CSE including a neuropsychological evaluation. The parent contended that, among other things, one of the submitted reports recommended, “’a therapeutic setting that specialized in the education of students with autism’” and that “the student needed to receive instruction ‘using a research and evidence based program such as ABA’ and “that the program needed to be provided in ‘a structured and predicable environment’”. The parent asserted that such a program ‘could only be found in a nonpublic school”. The parent also wanted ten hours a week of at-home ABA. The district contends that its IEP conforms “in practice” with the parent’s neurophysiological evaluation and sets out a program that is “functionally equivalent” to the recommendations in the neuropsychological report. The district asserts that the purpose of the home-based ABA was to generalize skills to the home environment and was therefore not appropriate in the IEP. There was no dispute that the student needed a 12-month program.

Conclusion: The SRO concluded that the evidence in the hearing record supported the IHO’s finding that the district’s IEP did not offer the student a FAPE. Basis of the SRO’s Decision: The SRO reviewed the evaluative data submitted to the CSE by the parent. Specific recommendations therein stated that the student needed a program “such as ABA” or ABA instruction for, among other things, academics, skills and skill acquisition, prevocational skills and goals relating to academic and language skills. The SRO concluded that the district failed to explain how its IEP addressed the student’s documented need for 1:1 intensive instruction throughout the day for skill acquisition and to achieve, among other things, academic and language skill goals. The SRO concluded that while the district might argue that its recommended paraprofessional may assist the student with respect to behavior, the IEP did not provide “for the student to receive 1:1 instruction to improve functional academics and prevocational skills” as recommended in the evaluative material provided to the CSE by the parent.

The SRO explained that there was “nothing in the hearing record to indicate that the 1:1 paraprofessional was intended to provide instruction to the student”, and further, that state regulations provided that a paraprofessional could not independently provide the recommended level of instructional services set out in the evaluations before the CSE. Additionally, the SRO 104

indicated that while the district provided the CSE with certain limited and inadequate evaluative information, the CSE had “no independent source of information to support its position that the student did not require 1:1 instruction using ABA methods”. Lacking its own evaluations to support its recommendations that the student’s program did not require 1:1 instruction using ABA and keeping the above in mind, the SRO concluded that the hearing record supported the IHO’s finding that the IEP failed to offer the student a FAPE; a finding which included 10 hours a week of at home ABA and which amount was supported by the evaluative data submitted to the CSE by the parent.

FUNCTIONAL BEHAVIOR ASSESSMENTS (FBA) AND/OR BEHAVIOR INTERVENTION PLAN (BIP) T.C. v. William Floyd Union Free Sch. Dist., 774 F.Supp.3d 583 (E.D.N.Y. 2025) Issue: Behavior -- FBA and BIP Dispute: Was the student required to have an FBA and BIP? Conclusion: The District Court determined that the student did not need an FBA and a BIP. Key Take Away: A parent should remember that an FBA and BIP are only required in circumstances where the student’s behavior impedes his or her learning or that of peers. Further, an FBA and BIP are not necessary where the CSE discusses the student’s behavior and recommends an IEP that contains adequate strategies for managing those behaviors.

Reasoning: The student is 15 years old and has been diagnosed with Specific Learning Disorders and Attention Deficit/Hyperactivity Disorder.

The student received a private neuropsychological evaluation in April 2018 and a follow-up private neuropsychological reevaluation in December 2019. The 2019 reevaluation said that the student did not meet the criteria for an anxiety or depressive disorder and advised that such symptoms be “monitored”.

The CSE met in May 2021 for an annual review for the 2021-2022 school year. Prior to that, in the fall of 2020, the student received a psycho-educational evaluation and a classroom observation. At its meeting, the CSE recommended that the student receive individual psychological counseling services (twice a month for 30 minutes a session), at least one social/emotional annual goal and supports and other strategies to address behaviors. The CSE also recommended the support of a 1:1 teacher’s assistant because of the parent’s concerns for the student’s transition back to a public school with a larger class size. Representatives of the student’s private school told the CSE that the student’s behavior neither impeded her learning nor that of others. The district’s CSE declined the parent’s request that an FBA be conducted and a BIP be developed The December 2019 private revaluation was apparently not submitted to the 105

CSE and was apparently not reviewed by the CSE. There is no claim that the parent asked for it to be considered and that in turn the CSE refused to do so.

On August 16, 2021, the parent advised the district by letter that she disagreed with the CSE’s recommendations, that she was enrolling the student in a private school, and that she was seeking tuition and transportation costs due to “substantive and procedural denials” of a FAPE. The parent filed a Due Process Complaint on December 6, 2021. The complaint said that the district failed to provide the student with a FAPE. The complaint also said thar the student did not need the CSE-recommended 1:1 aide. The due process complaint did not raise the issue of the need for an FBA and/or a BIP. The impartial hearing began in March 2022 and ended in April 2022. During the hearing, the parent brought up that the district had not recommended an FBA and BIP. The IHO concluded that the parent had not raised this issue in the due process complaint and therefore the issue should not be considered. However, the IHO moved forward and found that the student did not need an FBA or a BIP. The IHO further determined that a 1:1 aide was appropriate for the student’s program. For other reasons, the IHO determined that the CSE did not provide the student with a FAPE. The district appealed the IHO’s decision to the SRO. The parent cross-appealed. The parent’s cross-appeal stated that the issue of whether an FBA and a BIP was appropriate should not be considered as it was not a part of the parent’s due process complaint. At the same time, the parent said that the CSE should have recommended an FBA and a BIP for the student. Upon review, the SRO agreed with the IHO that whether the district should have conducted an FBA and developed a BIP should not be considered as it was not raised by the parent’s due process complaint. As the IHO did, the SRO then went on to consider the merits of that question. The SRO concluded that an FBA and BIP were not required by law. The SRO reminded the parties that the CSE’s decision not to conduct an FBA and develop a BIP resulted from the opinion of staff of the student’s private school who felt that the student did not present with behavior that was impeding her learning or the learning others. Further, the SRO said that the parent’s argument that the district failed to consider social/emotional testing was unsupported. In fact, the SRO said, the CSE did consider the student’s social and emotional needs. The SRO pointed out that the CSE developed a social/emotional annual goal and recommended “supports and other strategies” to address the student’s behavior which included counseling to reacclimate the student into a larger class-sized public-school setting. Finally, the SRO said that the parent’s reliance on the December 2019 evaluation as a reason to support an FBA/BIP was unwarranted as that evaluation did not show that the student’s behavior interfered with her learning or that of others. Moreover, the SRO pointed out that the evaluation was not considered at the May 2021 CSE meeting and neither did the parent ask that it be so considered.

The parent started a lawsuit in the United States District Court for the Eastern District of New York in November 2022. The parent argued that the CSE did not assess the student’s social and 106

emotional needs. The parent said that without an appropriate BIP the student would have regressed emotionally, behaviorally, and educationally, especially in a larger class size environment. The district argued that since the FBA and BIP issue was not a part of the due process complaint, it should not be considered by the District Court.

The District Court looked at the state regulations which described the need for an FBA and BIP. The District Court explained that an FBA and BIP is required in circumstances where the student’s behavior impedes his or her leaning or that of others. An FBA is a strategy to address the student’s behavior and “is the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment”. Where the student’s behavior impedes his or her learning or that of peers the CSE must also create a BIP. The BIP sets out intervention strategies to be used to alter “antecedent events”, to prevent the occurrence of the behavior, to teach individual alternative and adaptive behaviors to the student, and to provide consequences for the targeted inappropriate behaviors and alternative acceptable behaviors.

The District Court also examined case law and pointed out that such “clearly” explains that “a failure to conduct an FBA does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.

The District Court concluded that the IHO and SRO decision was persuasive and merited deference. The District Court said that the facts presented at the hearing did not suggest or indicate that the student’s behavior impeded his or her learning or that of others. To the contrary, the District Court indicated that the facts showed that the student did not display such issues.

Regarding the December 2019 evaluation, the District Court pointed out that it did not establish that the student met the criteria for any anxiety or depressive disorder, that it was not before the CSE and, “significantly” that the parent did not put forth a claim that she requested consideration of the report at the CSE meeting but was denied.

Also, like the above described caselaw, the District Court also pointed out that the CSE “developed a social/emotional annual goal and recommended supports and other strategies to address behavior”. This included twice monthly counseling meetings and a 1:1 aide to support the student’s learning during his return to a larger class size.

Further, the District Court found “speculative” the parent’s claim that in the absence of a BIP, the student would regress emotionally, behaviorally, and educationally if he received instruction in a larger class.

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L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) Dispute: Whether in the circumstances of this case, the conducting of an FBA is necessary to provide the student with a FAPE. Conclusion: Based on the circumstances, the Court concluded that it was not necessary to conduct an FBA in order to ensure that the student received a FAPE. Basis of the Court’s Decision: In this case, the student has been diagnosed with spastic diplegic cerebral palsy and Attention Deficit/Hyperactivity Disorder. The student has speech-language deficits that make “it difficult for his verbal communication to be understood by an unfamiliar listener”. During the 2017-18, 2018-19, and 2019-20 school years, the student was placed in a BOCES program’s “8:1+2 social communication special class, and qualified for extended school year services”. Because of the student’s language deficits, during this period, the CSE consistently recommended assistive technology (AT) for the student as well as an alternative augmentative communication (AAC) device.

The student “was involved in an isolated behavioral incident during the 2017-18 school year, eight such incidents during the 2018-19 school year and none during the 2019-20 school year”.

The student’s “2018-19 IEP stated that [the student] had begun to show aggressive behaviors … [and that] “[t]his pattern has escalated … It has started to interfere with his progress”. However, another district witness “testified that it didn’t actually impede his progress because [the student] was able to make progress toward his IEP goals”. Additionally, BOCES witnesses “testified that they were able to contain the behavioral incidents through interventions in the classroom”.

Among other things the SRO found that the district’s “failure to conduct an FBA [functional behavioral assessment] and implement a BIP [behavioral intervention plan]” did not deny the student a FAPE. The parent challenges this conclusion.

The Court said that under State regulations, an FBA is required and a BIP must be conducted when “the student is exhibiting persistent behaviors that are impeding the child’s learning [or that of others] despite consistently implemented [general school-wide or classroom-wide] interventions”. In this case, the Court found that the student was not “exhibiting persistent behaviors that [were] impeding the child’s learning despite consistent interventions” and upheld the SRO’s conclusion to that effect. The Court further determined that this was “the type of educational policy determination that should be left to the SRO”.

The Court also concluded that “[e]ven if [the student] exhibited persistent behaviors that impeded his learning, such that an FBA was required under the [State] regulation, the district’s failure to conduct one does not render the IEPs legally inadequate and constitute a denial of a FAPE”. The Court said that “[t]hough the IDEA incorporates some but not all [S]tate law 108

concerning special education, these regulations do not raise the IDEA bar by rendering IEPs developed without an FBA legally inadequate”. The Court said that the IDEA requires only that “in developing an IEP for a child whose behavior impedes the child’s learning, the school district must consider the use of positive behavioral interventions and supports and other strategies to address that behavior”. See 34 CFR 300.324(a)(2)(i). The Court said that “[a]ccordingly, Courts have found that, if the [d]istrict fulfilled the IDEA procedural requirements with respect to students whose behaviors impede their learning, a failure to conduct an FBA, even if the FBA was required under [State] law will not constitute a denial of a free appropriate public education”.

See A.C. v. Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). On the other hand, “a failure to conduct an FBA constitutes a violation of the IDEA where … there was no evidence that the student’s interfering behaviors were being adequately managed”. R.K. v. New York City Dep’t of Educ., No. 09-CV-478, 2011 WL 1131492, at *18 (E.D.N.Y. Jan. 21, 2011). With respect to this case particularly, the Court found “that the record shows the [d]istrict considered the use of positive behavioral interventions and supports and other strategies to address that behavior”.

Regarding this, the Court found that the district “was clearly aware of [the student’s] behavioral issues … and clearly considered those issues, as evidenced by the CSE discussions that are documented in [the student’s] IEPs”. Further, the Court pointed out that the district’s witnesses “noted that [the student] responded positively to reward systems and constant positive reinforcements, that these interventions contained [the student’s] maladaptive behaviors, and that his outbursts could be successfully managed in the classroom”. The Court concluded that an FBA was not required in order to provide the student with a FAPE. The parent also asserted that the SRO did not consider the parent’s “expert opinion”. With respect to this, there was a difference of opinion between the district and a parent witness on “how soon an FBA should be conducted after the student exhibited a challenging behavior”. The Court said that the SRO did not get involved with this “pedagogical dispute” after concluding that “[the student’s] behaviors were able to be managed with positive behavioral intervention supports and that [the student’s] behaviors were not persistent or ongoing” and that therefore an FBA was not necessary in order to ensure that the student was provided with a FAPE. The Court further said that it was not equipped to evaluate that dispute and that it did not have to as “the SRO decision was supported by the evidence”.

Application of a Student with a Disability, Appeal No. 20-083 (June 26, 2020) Dispute: The parent maintains that the district should have conducted an FBA and developed a BIP for the student for both the 2018-19 and 2019-20 school years. The district disagrees.

Conclusion: The SRO concluded that for both school years the district should have pursued additional information to understand whether the supports being provided to the student were meeting the student’s needs and should have conducted an FBA and developed a BIP.

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Basis of the SRO’s Decision: During the 2018-19 school year, the student was in the 6th grade and enrolled in a 12-month residential program at Green Chimneys. During this time, his behavior was such that it impeded his learning as well as that of other students. Further, the student failed to respond to school-wide and class-wide support systems and individual crisis management plans. The SRO concluded that by the time of the May and August 2018 CSE meetings, the district had “ample information to show that an FBA was warranted” and that this had been the case by November 2017. By 2018, the school had recommended the development of a behavioral plan but the hearing record did not contain any additional information about that plan or its effectiveness. The SRO further reported that the school obtained some data from at least 8 “incident reports” but there was no indication that the school used the resulting information to collect and review specific relevant information. Between January and August of 2018, the SRO reported that the school made used of a “redirection room” more than 40 times, reason enough under State regulation that a BIP was required.

The SRO concluded that the district attempted to “supplant” the CSE’s obligations under State regulation regarding the use of the redirection room and “offload[ed]” its responsibility in the CSE process to review existing plans and develop an appropriate one to address the student’s behaviors. Regarding this, it is not clear that the CSE reviewed Green Chimney’s individual crises management plans. The SRO concluded that “the reports of the student’s sustained behaviors and the reported inconsistent progress in the behavioral area should have, at the least, triggered action by the CSE to pursue additional information to understand whether the supports being implemented were meeting the student’s needs.” The SRO pointed out, notwithstanding the parent’s request for a reevaluation, the record was silent whether the reevaluation was conducted or that a prior written notice had been provided setting forth why the requested reevaluation was unnecessary. The SRO concluded that given the fact that the SRO had also determined that there was insufficient information in the hearing record to support the student’s residential placement, “the district would have been in a better position to justify the CSE’s recommendations had it obtained additional evaluative information that explored the student’s social/emotional and behavioral needs and how those needs affected his ability to receive educational benefit”. The SRO also concluded that since “the information in the record was insufficient to establish that the student needed a residential placement, the district’s failure to conduct further evaluations including an FBA or develop a BIP constituted a serious procedural violation which contributed to a denial of FAPE for the student for the 2018-19 school year.”

2019-20 school year Basis of the SRO’s decision: During the 2018-19 school year, the district did not conduct a reevaluation of the student in response to the parent’s request. Further, neither did the district conduct an FBA or develop a BIP despite the student’s interfering behaviors during the 2018-19 school year. These behaviors were documented by quarterly treatment reviews, childcare case conferences quarterly reports, reports of the student’s occupational therapy, and reports from 110

the student’s teacher. The hearing record also shows that during this time, Green Chimneys reported 24 incident reports and 120 instances where the student was directed to the redirection room. The SRO concluded that as of February 2019, “all of the student’s behaviors had escalated to a point where all of his skills were considered inadequate.” The student’s behaviors continued despite the implementation of a sticker chart and a tally system as well as, among other things, an individual crises management plan and supplementing individualized behavior program, treatment meeting plans and individualized classroom management goals. According to the SRO there was no evidence that Green Chimneys or the district used the data from these interventions “to establish a baseline of the frequency, duration, intensity, or latency of the student’s maladaptive behavior or that it examined how the student’s behaviors varied across activities, settings people or times of day”.

During the May 2019 CSE meeting, among other things, a number of the student’s difficulties were discussed and a number were reflected in the resulting IEP. Consistent with the record, among other things, the IEP also concluded that the student’s “difficulties with emotional regulation and behavioral management had a significant impact on his involvement and progress in the general education curriculum”. At the same time, Green Chimneys had “determined that it could no longer meet the student‘s needs. With respect to special factors, the IEP advised that while the student needed strategies and supports to address behavior, the student did not need a BIP. The teacher testified that an FBA was not implemented in the 2018-19 school year because of the tally system, sticker charts and the provision of extra supports in the areas of need. The school’s assistant director agreed with the teacher. She also testified that an FBA was typically recommended in a school-based, public school or BOCES setting to address one or two behavior and that the student “experienced several behaviors” and that the purpose of “attending Green Chimneys’ therapeutic program was that the entire program worked toward behavior”.

The SRO concluded that “the district’s failure to conduct an FBA and develop a BIP constituted a procedural violation, which contributed to a denial of a FAPE during the 2019-20 school year, particularly given the insufficiency of the evidence in the hearing record to support the CSE’s continued recommendation of a residential placement.”

In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 Dispute: Parent sets forth that the student was denied a FAPE and should be provided with compensatory education because, among other things, behavioral support services (BSS) were not provided “as needed and agreed upon” and a BIP was not provided despite team agreement.

Conclusion: The administrative officer concluded, among other things, that the student should have received behavioral support services and a BIP sooner than they were provided and determined that a program of compensatory education was appropriate.

Basis of the Administrative Officer’s Decision: The district suspended in-person learning in midMarch 2020. The administrative officer concluded that the student was “very capable with proper supports” and was making overall progress before in-person learning was suspended.

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After the March suspension of school services, the student was provided with online services.

“The student did not complete many assignments with distance learning at the end of 2019/20.”

The administrative officer concluded that at the April 24, 2020 team meeting, the school psychologist agreed that a BIP should be provided and the social worker was tasked to do that.

A BIP was provided following the April 29, 2020 IEP meeting. However, the BIP “was not finalized or implemented until after [June 9, 2020]”. The administrative officer found that “the student needed a BIP to be added before the end of the 2019-2020 school year” and that “[t]his might well have assisted [the student] with distance learning as [the student] had an extremely difficult time staying on task and with self-initiation and was unable to complete many assignments with distance learning at the end of 2019/20”.

Regarding the provision of BSS, the administrative officer found that at the time of the April 29, 2020 IEP team meeting, the IEP team agreed that the student needed behavioral support and that there was enough information at that meeting to add BSS to the student’s IEP. However, BSS services were not added until the June 12, 2020 IEP. The administrative officer concluded that this delay was “an important missed opportunity to support [the student] in distance learning, which might have been pivotal as the student did not complete many assignments with distance learning at the end of 2019-/20”.

The administrative officer concluded “that taken together the delay in providing BSS and a BIP to [the student] are a denial of FAPE by not providing the support that [the student] needed when 2019-20 shifted to distance learning, causing educational harm” and therefore that the student’s April 29, 2020 IEP was not reasonably calculated to enable the student to make appropriate progress.

The administrative officer concluded that the student should receive compensatory education in the form of 150 hours of independent tutoring and 20 hours of counseling in the school setting.12

BULLYING Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024) Issue: Title II of the ADA & Section 504 of the Rehabilitation Act of 1973 -- bullying Dispute: Whether the parents and students set forth a cause of action of bullying in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the ADA.

12 The administrative officer also found that the student did not have appropriate academic goals for the first two terms of the 2019-20 school year and that this was a denial of FAPE for which the student should receive compensatory education. The administrative officer did not break out how much of the ordered 150 hours of tutoring and 20 hours of counseling was the result of this and how much of the ordered tutoring and counseling was the result of the district’s failure to provide the student with a timely BSS program and a timely BIP.

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Conclusion: The Court concluded that the parents and students did establish a cause of action in bullying in violation of Section 504 and Title II of the ADA. Key Take Away: A parent can show that a district violates Section 504 and Title II of the ADA if, among other things, the parent can show that the district was “deliberately indifferent” to the harassment/bullying. Deliberate indifference can be assigned (imputed) to teachers and administrators for students’ peer-on-peer harassment when those teachers or administrators display deliberate indifference to the underlying harassment, where such harassment is motivated by discrimination.

In this case, the Court found that the district was not deliberately indifferent to harassment/bullying when it was unaware that general education students took pictures and videos of special education students in the boys’ bathroom with their pants down or, when it did know such a thing, it took prompt steps to strengthen the protocols around the supervision of special education students in the boy’s bathroom so as to ensure that similar acts affecting the students’ security and privacy would not recur.

Reasoning: This case concerns three school age children eligible for special education programs and services as students with autism and their parents.

“Starting in the fall of 2021 [the students] were verbally and sexually harassed by certain general education students who took photographs of them in the bathroom while their pants were down”. 13 On, March 11, 2022, a student told district special education staff that students had taken pictures and videos of two of the students in the bathroom with their pants down. On, March 14, special education staff implemented new procedures for supervision in the boy’s bathroom to prevent similar incidents in the future. On March 17, 2022, a special education teacher notified the students’ parents “about the harassment. On March 24, district special education staff and a police officer assured one of the parents “that the inappropriate behavior and harassment would stop and that there were new bathroom protocols to prevent similar bullying incidents in the future. One parent received an anonymous text messages and screen shots of pictures of the three students. He provided that cellphone to the police and district employees for investigation. During the district’s investigation, around March 21, 2022, three students confessed in writing to district staff that they were involved in the March 11 incident.

However, district staff did not inform the parents of the students who were subjected to the harassment. The district staff did not believe that the written confessions were “sufficient enough evidence” to share with the parents. In their complaint, the parents argue that those students were not punished for their actions on March 11.

As indicated below, the alleged facts did not indicate that any district employee “was aware of such bullying until Friday, March 11, 2022” and that after that incident special education staff “took prompt steps to strengthen the protocols around the supervision of special education students in the boys’ bathroom so that similar acts affecting their security and privacy would not recur”.

13

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On April 6, 2022, the Board of Education agreed to hire a third-party firm to investigate the incident. The firm began its investigation in July of 2022. The report found that the district took prompt steps after receiving the Whistleblower’s report of misconduct on March 11 to prevent similar incidents in the future.

The parents filed their initial complaint on June 1, 2023, and an amended complaint on October 12, 2023. The amended complaint included claims of violations of Section 504 and of Title II of the ADA. The district filed a motion to dismiss.

The District Court dismissed the parents’ Section 504 and Title II ADA claims.

The District Court advised stated that to make a viable claim under Section 504 and Title II of the ADA a person must demonstrate that: 1. they are a qualified individual with a disability, 2. the defendant is subject to Title II of the ADA or Section 504, and 3. they were denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities or was otherwise discriminated against by the defendant because of her disability.

The District Court also pointed out that in cases brought under Section 504 and Title II of the ADA for harms caused by school bullying, district courts in the Second Circuit have used a three-part test to determine whether schools are liable for peer-to-peer harassment. See Davis v. Monroe, 526 U.S. 629, 650 (1999). The District Court pointed out that under that test, individual defendants can be liable for peer-to-peer harassment even if their actions are not motivated by discrimination if those defendants displayed deliberate indifference to the underlying harassment, where the harassment is itself motivated by discrimination. The District Court pointed out that to establish that a defendant was deliberately indifferent, a plaintiff must show that 1. they were harassed on the basis of their disability; 2. the harassment was so severe, pervasive, and objectively offensive that it altered their education; 3. the school district had actual notice of the disability-based harassment; and 4. the school was deliberatively indifferent to it.

The District Court did not address the first three prongs because it concluded that the facts in the amended complaint were not enough to satisfy the fourth prong. Therefore, the District Court concluded that the case did not rise to the level of a Section 504 or Title II of the ADA violation.

With respect to deliberate indifference, the District Court pointed out that “[d]eliberate indifference to bullying under Davis is found where the district’s response was so clearly 114

unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur”.

In this case, the District Court concluded that the parents did not allege any facts that supported a claim that the district and its staff were deliberately indifferent to the bullying experienced by the students. The Court used the fact that the district responded quickly after learning of the bullying and the strengthened protocols to prevent future incidents to support their decision that there were no facts to support a claim of deliberate indifference.

Even though the District Court agreed with the third-party investigation report that “the investigation into which students were responsible for the March 11 incident was deficient, particularly as to the failure to properly document investigative steps, the extent to which the investigation lacked coherent leadership, and the manner in which investigative findings were (or were not) reported to key constituencies”, The District Court said that those deficiencies did not meet the requirements of showing deliberate indifference. Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it”; allegations that the District Court said, were not a part of the amended complaint. Moreover, the District Court added that while the parents could have plausibly alleged “negligence” or even “incompetence in conducting the investigation, they have not plausibly alleged that the district did so little to safeguard the [students] so as to give rise to a reasonable inference that it intended for the harassment to occur”.

The Court dismissed the parents’ and students’ Section 504 and Title II of the ADA claims.

B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) Dispute: Whether the district complied with its anti-bullying obligations and responsibilities.

Conclusion: The district complied with its anti-bullying responsibilities and obligations subsequent to the September 6, 2019 “safety plan”.

Basis of the Court’s Decision: Although the Second Circuit has not reached the issue (see T.K. v. New York City Dep’t of Educ., 810 F.3d. 869, 876 n.3 (2d Cir. 2016), Judge Weinstein of the Southern District of New York established a four-part test with respect to the circumstances under which bullying deprives a student of a FAPE. See T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 316 (E.D.N.Y. 2011). In particular, the four-part test is “(1) was the student a victim of bullying; (2) did the school have notice of substantial bullying of the student; (3) was the school deliberately indifferent to the bullying, or did it fail to take reasonable steps to prevent the bullying; and (4) did the bullying substantially restrict the student’s educational opportunities.” Accord e.g. T.J. v.

Bd. of Educ. of Mt. Vernon City Sch. Dist., No. 17-CV-09592, 2019 WL 13170168, at *15 (S.D.N.Y. Sept. 30, 2019).

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The student in this case has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyper-Activity Disorder, reading and writing impairments, and chronic kidney disease. The student is eligible for special education programs and services as a student with a disability and in particular Other Health Impaired.

On December 21, 2017 the parents filed a complaint to the district asserting bullying under the Dignity for all Student’s Act (DASA) 14. “The complaint was investigated and deemed unfounded”.

At a May 30, 2018 CSE meeting the parents “voiced concerns” regarding the student’s progress and the resulting IEP “first acknowledged [the parents’] concerns with bullying”. Shortly after the beginning of the 2018-19 school year, which would have been the student’s seventh grade year, the parents filed a bullying report “about name calling, assaults, and peer pressure by another student”. A bullying report in October 2018 reporting that the student “was called vulgar names and physically assaulted by another student”. The student’s IEPs “continued to acknowledge problems identifying social cues and making friends”. “Early in 2019, the student began to have attendance issues at school”. The IEP for the January 17, 2019 CSE meeting “continued to indicate [the parents’] concerns with bullying and noted [the student’s] inability to identify social cues or make friends”. The March 15, 2019 IEP “focused substantively on social and emotional goals in light of ongoing concerns about [the student] in the school environment”. “The CSE introduced a plan to simplify and disseminate the IEP but [the parents] objected as it did not address why [the student] was having a meltdown at that time”. The parents filed a second DASA complaint on May 6 “alleging that another student was repeatedly harassing [the student] and calling him vulgar names”. On May 9, 2019, the school’s video monitoring system observed “[the student] and others walking down the hallway when another student approaches the student and pushes him to the ground”. “A further DASA complaint was filed … and the resulting investigation confirmed that a bullying incident had occurred”. Later that day the student was involved in an altercation with another student and given a five-day suspension. The district discussed the matter with the parents and offered to place the student in an out-of-district school. The parent did not agree and removed the student from the district for the balance of the 2018-19 school year. The CSE met on June 24, 2019, for the purpose of establishing an IEP for the 2019-20 school year. The parents, among other things, “expressed DASA concerns at that meeting”. The notes of the meeting “however” indicated that the focus of the meeting was on the student’s “academic progress and goals”. The resulting IEP “removed language included in previous IEPs that [the parents] had specifically expressed bullying concerns”.

The student did not return to school during the 2019-20 school year when he would have been in the eighth grade but attended a private school. The 2019-20 school year began on September 2, 2019. The district prepared a “safety plan” dated September 6, 2019 to address bullying of the student. According to the plan, its purpose was “to provide a safe and secure learning environment that is free from harassment, intimidation, or bullying of [the student]”. The plan 14

See N.Y. Educ Law, Sections 10-18.

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included a number of elements. Among other things, the plan “placed eleven obligations on district staff including [among other things] allowing [the student] the opportunity to leave class, call family, or contact other school staff members; letting [the student] out of class early and sending him to eat lunch separately to avoid contact with other students; mandatory monitoring and reporting of potentially problematic situations involving [the student] in school common areas, separation of [the student] and offending students during class and extra-curricular activities, and informing the school body at large about bullying policies and related issues”. “The plan, additionally, placed thee obligations on [the student] and two on [the parents] to help mitigate bullying issues”.

The parents filed a due process complaint notice on December 9, 2020 with respect to the 201819, 2019-20, and 2020-21 school years. Among other things, the parents sought tuition reimbursement for the 2019-20 school year asserting that bullying had denied the student a FAPE. The matter was appealed and cross-appealed to the OSR, which issued a final decision on January 5, 2022.15 As it related to bullying, the IHO and SRO both agreed that the issue before the Court was the applicability of the third prong of Judge Weinstein’s test, and in particular, whether the district was “deliberately indifferent to the bullying or did it fail to take reasonable steps to prevent the bullying”.

Both the IHO and the SRO concluded that during the four-day period from the September 2, 2019 beginning of the school year until the September 6 date of the action plan, the district failed to provide the student with a FAPE. Because of this, the IHO granted the parents a remedy of 25% of the student’s tuition for the 2019-20 school year. The SRO reversed the IHO’s decision in this regard because the safety plan was implemented only four days into the school year. The Court affirmed the SRO’s determination, pointing out that during the 2019-20 school year, the student did not enroll in the private school until November 2019, and that the parents did not seek specific, alternative relief for that four-day period of time.

With respect to the 2019-20 school year, after the implementation of the September 6, 2019 safety plan, the Court pointed out that both the IHO and SRO determined that the district 15 Relative to the 2018-19 school year, apparently because the parents’ due process complaint notice did not request one, the IHO determined not to “award [the parents] any remedy”. The parents did not appeal that determination.

As a consequence, the SRO advised that this determination was final and binding on the parties and it would not be considered. It is not clear whether the parents enrolled the student in a private school when he left the district toward the end of the 2018-19 school year. If the student had attended a private school during that period the parents would have been eligible to seek a remedy of tuition reimbursement. Additionally, because one component of a successful bullying claim under T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 316 (E.D.N.Y. 2011) is that the bullying substantially restricts the student’s education opportunities, the parents could have sought compensatory education as a remedy. Moreover, in circumstances where bullying has denied the student a FAPE and the district does not appropriately respond, which could be a subject of a due process complaint notice and the remedies under the IDEA would be applicable. Note also here that bulling can serve as the basis of a violation of Section 504 and the ADA and the remedies for such claims would be available.

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satisfied its anti-bullying obligations and responsibilities because of the safety plan, accorded substantial deference to those determinations, and found that the parents did “not provide compelling legal or factual reasons to overturn the SRO and [did] not suggest any specific modifications to the safety plan that would make it more effective”.

The parents asserted that “one fault of the plan was that it placed the burden on the student not the school staff to ensure [the student’s] safety” and further that the plan “singled out [the student] by having him leave class early which would make [the student] a further target for bullying”. Regarding the first issue, the Court advised that “although the safety plan allowed for [the student] to report bullying, that was not the only mechanism put in place” by the action plan. Regarding the second issue, the Court said that the parents did “not explain how removing [the student] from potentially problematic situations in hallways between classes would lead to, rather than prevent, bullying. Most importantly, the Court said that the IHO and SRO “thoroughly considered those issues and determined that the safety plan was adequate”. The Court said that it “afford[ed] substantial deference to these determinations, which implicate matters of state educational policy” and said that the parents “[did] not provide compelling legal or factual reasons to overturn the SRO and do not suggest any specific modifications to the safety plan that would make it more effective” Regarding the September 6, 2019 safety plan, the parents also contend, among other things, that the meeting relative to the safety plan “was not an official CSE meeting” and that there was no evidence that the safety plan was incorporated into the IEP. Consistent with the SRO’s conclusion, the Court said that there was no legal authority for the proposition that “schools only address bullying through the formal IEP process”, pointing out that such would “inhibit the ability to address bullying” and, citing to cases, said that courts “routinely assess steps taken by schools outside of the formal IEP process in determining whether a district has complied with its obligations to mitigate bullying”. The Court finally said that the parents did not “identify [any] plausible prejudice in the failure to hold a formal IEP meeting on the safety plan.”.

D.S. v. New York City Dept of Educ., et al., 600 F.Supp.3d 434, 439-451, 455-60 (S.D.N.Y. 2022) Dispute: Did the plaintiff set forth a violation of Section 504 of the Rehabilitation Act of 1973.

Conclusion: The Court concluded that the plaintiff’s amended complaint set forth a violation of Section 504 of the Rehabilitation Act of 1973.

Basis of the Court’s Decision: At all relevant time periods the student was 11 and/or 12 years old, in the sixth and/or seventh grades and enrolled in a district school. The student previously had surgery to remove a brain tumor, which, during the relevant time period he required follow-up care to monitor for its potential recurrence and to control seizures. The student “ha[d] been diagnosed with post118

traumatic stress disorder, (PTSD), generalized anxiety disorder, epilepsy, and various learning disabilities.” As a result of the student’s disabilities, at all relevant times was on an individualized education program (IEP).”

The Court set forth the legal standard in Section 504 of the Rehabilitation Act of 1973 (hereinafter “Section 504”). That section provides that “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under, any program or activity receiving federal financial assistance”. The Court went on to explain that to show a prima facie violation of a Section 504 claim, a plaintiff must show that (1) he is a disabled person under the Rehabilitation Act; (2) he is otherwise qualified for the program; (3) he is excluded from benefits solely because of his disability; and (4) the program or special service receives federal funding. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014)….”

The Court pointed out that “in the school bullying context, the bullying itself need not be based on a disability – i.e., the object of the bullying need not be the victim’s disability. This is because in such cases, the claim focuses on a different harm: [t]he denial of the student’s right under the [Individuals with Disabilities Education Act] to an appropriate education … The Second Circuit has thus recognized that a Section 504 violation may be predicated on the claim that a disabled student was denied access to a free appropriate education as compared to the free appropriate education that non-disabled students receive.”

“Nevertheless, because the Rehabilitation Act addresses discrimination against disabled students rather than failures to provide special education services, a claim based on a denial of a free appropriate public education (FAPE) brought under Section 504 requires something more than a mere violation of the [Individuals with Disabilities Education Act (IDEA)] … That something more is evidence that the defendant acted in bad faith or gross misjudgment … Put otherwise, discrimination sufficient to support a Section 504 claim may be inferred when there is evidence that a school district acted with deliberate or reckless indifference to the student’s federally protected rights or with bad faith or gross misjudgment”.

The Court concluded that “[i]n light of the student’s PTSD and learning disabilities, the student was entitled to special education and other services under the IDEA, including an IEP.” As set out below and in his federal amended complaint, during the student’s sixth and seventh grade years, he was “ruthlessly” and incessantly bullied and harassed because he advised his class that he was gay and that his parents were gay and married. The amended complaint set forth that in the student’s sixth and seventh grade years, the parents attended IEP meetings, “raised concerns about how the bullying [the student] faced impacted his education” or “asked that his IEP be reopened and a new IEP meeting take place”. At IEP meetings, the amended complaint sets out that the district staff “refused to discuss the bullying and stated that it was not an appropriate topic to be included or addressed in an IEP”.

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On or about June 2019, a parent requested an impartial hearing under the IDEA. The parent asserted in that administrative complaint that, among other things, the district had failed to “address [] the bullying [the student] faced at [the school] and its effects on his ability to learn”.

Among other things, the impartial hearing officer (IHO) concluded that “two years of bullying that [the student} was subjected to at [his school] and the apparently callous disregard of school staff contributed to the student’s deprivation of a FAPE.” The IHO further explained that “[t]he impact of the [s]tudent’s prior trauma was greatly exacerbated by the prolonged and intense bullying … and that the failure to address the bullying situation that the [s]tudent experienced constituted a deprivation of FAPE. In this regard, the IHO pointed out that “[i]n addition to not making academic progress, the [s]tudent actually experienced substantial emotional, behavioral and social regression during his two years at [the school]” and that “[p]er the testimony at the hearing, the bullying constituted an additional and continuing trauma throughout the time of the [s]tudent’s attendance at the school”.

The district conceded at the impartial hearing that it had violated the IDEA and failed to provide [the student] a FAPE. Consistent with this, the district “did not contest or appeal” the IHO’s decision,”.

The parent filed a complaint of discrimination pursuant to Section 504 of the Rehabilitation Act on June 28, 2021, in the United States District Court for the Southern District of New York.

Thereafter, the defendants filed a motion to dismiss in accordance with Federal Rule 12(b)(6).

Regarding the rule, the Court noted that “[w]hen resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, drawing all reasonable inferences in favor of the plaintiff”.

In this case, the court concluded that the amended complaint set forth facts sufficient to show that the district and relevant staff acted with deliberate indifference.

Upon a review of the amended complaint, the Court concluded that the argument that the amended complaint does not adequately plead deliberate indifference “falls well short.” Among other things, the Court pointed out that plaintiff’s pleading set forth that “for years [the student] faced a steady stream of bullying and harassment from his peers. Almost immediately after coming out as gay and revealing the fact that his fathers are gay”, the amended complaint alleges that the student “was ruthlessly bullied within [his school] for his sexuality and gender expression. He was regular called derogatory names … ”. Sexually based “rumors spread” in the classroom. “Students made crude sexual jokes about [the student’s] means of dealing with the stress” “Even [the student’s] friends became subject to harassment due to their association with [the student]” and “[the student’s] and his fathers’ efforts to create a safe space for [the student] at school – a [Gay Straight Alliance] club were rejected in deference to other students’ potential offense at the club”. In response to this, the amended complaint alleges that the student “largely kept to himself. He began to lose sleep and miss school due to anxiety about the bullying, which 120

in turn required multiple counseling sessions every week to deal with it all … And he developed suicidal ideations – making comments to that effect before both teachers and his parents”.

The Court concluded that “as pled”, the school and school officials “were on ample – indeed detailed – notice of [the students] claims of bullying and of its dire consequences for him” And that the student’s “parents put a broad array of [district] administrators on notice of the severe bullying that [the student] was experiencing”: notices to teachers and school administrators; information and complaints from parents “about the bullying and the need for effective innervation; demand for meetings with school officials to discuss their son’s harassment and find solutions”; ”logged in information” to school systems to communicate information to other staff; “[district] officials outside of the [school] met with the [student] and school officials to discuss his bullying and escalated the issue within [the district].”

The amended complaint also set forth that “the school failed to meaningfully respond to those pleas and [e]ven when the school found instances of bias-based harassment” “school officials often did nothing or next to nothing in response”.

The district answered by alleging that the actions were “reasonably calculated to end the harassment”. “On the pleadings however, which, on a motion to dismiss must [as indicated above], be read in the light most favorable to the plaintiff,” the Court said that “such a defense is unsustainable.” In particular, the Court said that the parent “plausibly pleads long running inattention, inaction, and deflection from the defendants, which was not close to offset by the school’s occasional logging of incidents, hosting of toothless mediations, and the like” and “the school’s efforts were not reasonably calculated to end the harassment”. The Court concluded that “the facts alleged make out a textbook case of deliberate indifference”.

The Court pointed out its agreement with the district and its officials that “courts as a general matter should refrain from second guessing the day-to-day disciplinary decisions they are charged with making”. But, the Court said, “that does not categorically insulate school officials from liability in well-pled cases of unreasonable official responses to a student’s harassment. And on the pleadings here”, the Court said that “the school’s failure to act to protect a known vulnerable student in the face of known severe bullying cannot be found reasonable so as to entitle it and its officials to any such solicitude”.

With respect to defendants’ case, the school and district officials first argue that the amended complaint “does not allege that [the student] was bullied because of his disabilities”. The Court replied that even if true it made no difference as “Section 504 claims do not require such a factual basis”. In fact, the Court said that the district and district officials and staff in fact “acknowledge” that “a Section 504 claim may be based on the denial of a FAPE so long as the school acted with gross negligence or reckless disregard in so denying”.

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Second, the district, its officials, and staff assert that they “went to great lengths in their attempts to mitigate the alleged bullying”. The Court said that the plaintiff’s pleadings “forcibly contradicted that”. The Court pointed out that it was “largely undisputed at this stage – that: (1) the school deprived [the student] of a FAPE” as [the IHO found] and the district did not challenge; (2) the deprivation was based on the bullying [the student] experienced at the school; (3) the bullying substantially interfered with [the student’s] educational opportunities; and (4) the school did not account for the bullying in the student’s IEP, which lacked an anti-bullying plan or the provision of reasonable services to stop (or mitigate) the bullying.” Regarding the latter and as indicated above, the amended complaint set forth that district staff “refused to discuss the bullying and stated that it was not an appropriate topic to be included or addressed in an IEP and refused to include in the IEP any services or supports to mitigate the effects bullying had on the student”.

And with respect to the “deliberate or reckless indifference” required of a 504 claim, the Court concluded that the amended complaint “adequately alleges that defendants were deliberately or recklessly indifferent to their response to [the student’s] bullying”.

The Court denied “defendant’s motion to dismiss the Section 504 claim”.

T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) Dispute: Whether the district denied the student a FAPE by refusing to discuss bullying with the student’s parents despite their reasonable concern that the severe bullying that the student endured could prevent her from receiving a FAPE. Conclusion: The Circuit Court held that the district denied the student a FAPE by refusing to discuss bullying with the student’s parents despite their reasonable concern that the severe bullying that the student endured could prevent her from receiving a FAPE. Basis of the Circuit Court’s Decision: “[T]he IDEA requires States to provide parents with the opportunity to participate in the decision making process regarding the provision of a FAPE to the parents’ child”. 20 U.S.C. 1415(f)(3)(E)(ii).

In order for there to be a violation of a FAPE, this and other procedural violations of the IDEA must “significantly impede the parents’ participation rights, impede the child’s right to a FAPE, or cause a deprivation of educational benefits”.

Because the Circuit Court had not discussed the issue before, and because the district conceded that bullying “can be an appropriate consideration when it reaches a level where a student is substantially restricted in learning opportunities”, the Court assumed as much without deciding.

The Court also gave a nod to the United States, an amicus to the appeal, which had said “that bullying can interfere with a disabled student’s ability to receive a FAPE”.

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The Circuit Court concluded that the district “denied [the student] a FAPE by violating her parents’ procedural right to participate in the development of her IEP”. The Court pointed out that “[a]t two separate meetings, both of which were integral to the development of [the student’s] IEP [the parents] sought to discuss bullying but school officials refused to do so”.

According to the Circuit Court, the “undisputed record evidence confirms that in asking to speak with the officials about the bullying, [the students’] parents had reason to believe that the bullying would interfere with [the student’s] ability to receive meaningful educational benefits and could prevent [the student’s] public education from producing progress, not regression.”

“For example [a staff member assigned to the student] reported that bullying negatively affected [the student’s] ability to initiate, concentrate, attend, and stay on task with her homework assignments and activities after school”. Additionally, there was “undisputed evidence that [the student] dreaded going to school, counted the days until the end of school, and was frequently tardy arguably due to her fear of being bullied”. The student’s father testified that the student was “emotionally unavailable to learn” and that “she came home crying and complaining about bullying on a near daily basis.” Further, three of the staff assigned to help the student “confirmed that [the student] was constantly teased, excluded from groups, and subjected to a hostile environment”. Moreover, “a doctor familiar with [the student] testified that [the student’s] her classroom behavior and demeanor had regressed from the prior year”. The Court further said that “given the school’s lack of cooperation about the bullying, [the parents] could not reasonably be confident that they had been informed about the full scope of the bullying or its effects on [the student]”.

The Court found that “[t]he Department’s persistent refusal to discuss [the student’s] bullying at important junctures in the development of [the student’s] IEP significantly impeded [the parents’] right to participate in the development of [the student’s] IEP … that constituted a procedural denial of a FAPE. “The [district] argued that the [parents] suffered no harm arguing that the student’s IEP already discussed bullying as it included goals for improving the student’s behavior that might reduce further bullying … and that some anti-bullying strategies are better addressed through channels other than the IEP”. The Court was clear that it was “not persuaded” and that “[d]enying [the student’s] parents the opportunity to discuss bullying during the creation of [the student’s] IEP not only potentially impaired the substance of the IEP but also prevented them from assessing the adequacy of their child’s IEP”.

The Court concluded that “the parents’ were reasonably concerned that bullying severely restricted [the student’s] educational opportunities and that concern powerfully informed their decisions about [the student’s] education. By refusing to discuss that bullying during the development of the IEP, the [district] significantly impeded [the parents’] ability to assess the adequacy of the IEP and denied [the student] a FAPE”.

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E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug, 25, 2022) Dispute: Whether bullying interfered with the student’s ability to receive a FAPE. Conclusion: The Court upheld the IHO and SRO and concluded that the alleged bullying did not interfere with the student’s opportunity to receive a FAPE. Basis of the Court’s Decision: “[B]ullying can interfere with a disabled student’s ability to receive a FAPE” (T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 876 [2d Cir. 2016]). “Thus, the Second Circuit has found a denial of FAPE when a school refused to discuss bullying during development of a student’s IEP and resulted in a significant impediment to the parents’ ability to assess the adequacy of the IEP” (id.).

In this case, the IHO and the SRO reviewed evidence of alleged bullying relative to an incident on a school bus, during recess, and in a prior year involving the threat of a BB gun. Both the IHO and the SRO agreed that there was nothing about the referenced incidents that bullying occurred and that this impacted the student’s ability to receive a FAPE. Initially, the Court noted that “[w]here the IHO and SRO agree, the district court’s deference to the administrative proceedings is heightened”. The Court concluded that it “therefore gives due deference to the SRO’s through and well-reasoned analysis, which upheld the IHO’s finding”.

The Court reviewed the record and agreed that it did “not support a finding that the student was denied a FAPE due to instances of bullying”. The Court said that “[u]nlike in TK where the parents had reason to believe that the bullying would interfere with the student’s ability to receive meaningful educational benefits and the school officials refused to discuss the bullying with the parents, here the record show[ed] that the [principal of the student’s public school] investigated and discussed the alleged bullying incidents with the [parents] and uncovered no evidence that the incidents were related to [the student’s] disability or affected [the student’s] ability to receive educational benefits. Further, “[a]though the parents argue[d] that the alleged bullying had an impact on their decision to privately place the student, the Court pointed out that they admitted at the time that they didn’t know if the student was being bullied because of his learning disabilities but only that they “suspected that may be the case”. Finally, among other things, the Court noted that the parents “did not raise these issued at the CSE meetings”.

CHILD FIND Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023) Dispute: Whether the district met its burden to show that it followed its own child find procedures.

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Conclusion: The SRO reversed the IHO and concluded that once the parents asserted that the district failed to meet its child find obligations, the district had an obligation to show how it did; that in this case it did not do so, which was a violation of the IDEA child find provisions.

Basis of the SRO’s Decision: The student attended a private school for the 2020-21, 2021-22, and 2022-23 school years. “In April 2021 (pre-kindergarten), the parents became aware that the student had been spending much of his school day in the principal’s office due to behavior problems.” At that time, the parents made arrangements and “hired a behavioral specialist to observe the student and provide guidance to his teachers”. During the fall of the 2021-22 school year and through February of that school year, the parents made private payments to provide the student with an OT evaluation, OT services, and a special education itinerant teacher services (SEIT)/behavior specialist. At the end of the 2021-22 school year, the parents worked with the school so that the student would be “paired with a supportive team of teachers for the following school year”.

In early 2022, because of his “continued struggles in the classroom”, the private school suggested that the student be evaluated by the district to determine his eligibility for special education services. The student received a number of evaluations in February and March 2022.

The CSE convened on April 5, 2022 and found the student eligible for special education as a dually enrolled student with an emotional disturbance and created an individualized education services program (IESP) for the student with an implementation date of May 3, 2022. The CSE recommended that the student receive OT, individual counseling, and a full-time 1:1 paraprofessional. The CSE also completed an FBA during that meeting. The parents had the student privately evaluated in October and November 2022, which resulted in an evaluation report in December 2022.

The parents filed a due process complaint notice dated April 3, 2023, alleging that the district failed to provide the student with a FAPE during the 2020-21, 2021-22, and 2022-23 school years.

Among other things, the parents alleged that the district failed in its child find obligations for the 2020-21 school year and a portion of the 2021-22 school year. For relief, the parents requested reimbursement for the OT, SEIT, and tutoring services they had provided, an order to fund a 1:1 behavioral support professional an independent FBA and BIP, reimbursement for the October 2021-22 OT and the December 2022 private evaluation, and to fund appropriate compensatory services.

The IHO determined that the district met its child find obligations for the 2020-21 and 2021-22 school years but that it failed to provide the student with a FAPE for the 2021-22 and 2022-23 school years, ordered the district to reimburse the parents for the cost of the OT, the private tutoring, and 1:1 behavioral support from May 3, 2022 through the end of the 2022-23 school year as well as funding for the October 2021 OT evaluation and ordered the district to fund compensatory education consisting of 72 hours of OT and 48 hours of counseling services.

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“The purpose of the child find provisions of the IDEA is to identify, locate and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. The IDEA creates an ongoing affirmative duty upon a local education agency to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. This child find obligation applies to children who are suspected of being a child with a disability … and in need of special education even though they are advancing from grade to grade. Thus, Courts have held that the child find duty is triggered when there is reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability. To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing or have no rational justification for deciding not to evaluate the student.

States are encouraged to develop effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education. Additionally, … a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district’s response to intervention (RtI) program.”

With respect to child find, the parents argue “that the IHO erred in determining that the district satisfied its child find obligations … because the IHO failed to address the parents’ assertion at the impartial hearing that the district did not have appropriate child find procedures in place”. In particular, the parents’ due process complaint notice “asserted” that “the district did not have appropriate procedures in place to locate, identify, and evaluate the student during the 2020-21 and 2021-22 school years”. With respect to the IHO’s decision, on appeal, the parents “contend that the IHO erroneously shifted the burden to the parents to prove what information the district knew about the student’s potential disability and need for evaluation and when the district obtained such information”. The SRO pointed out that “during the impartial hearing the district did not present any evidence that it followed its own child find procedures, thus the district did not meet its burden for this issue...”. Regarding the district’s burden, the SRO said that the parents’ assertion above “placed the district on notice that it would have to defend its child find procedures during the impartial hearing, which it failed to do”.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Did the district violate its obligation relative to child find.

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Conclusion: The SRO affirmed the IHO’s determination that the district violated its child find obligation.

Basis of the SRO’s Decision: “The purpose of the child find provisions of the IDEA are to identify, locate and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. The IDEA creates an ongoing affirmative duty upon a local education agency to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. This child find obligation applies to children who are suspected of being a child with a disability … and in need of special education even though they are advancing from grade to grade. Thus, Courts have held that the child find duty is triggered when there is reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability. To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student.

States are encouraged to develop effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education. Additionally, … a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district’s response to intervention (RtI) program.”

In this case, “[d]uring the 2017-18, 2018-19 and 2019-20 school year the student received support in reading as part of the district’s multi-tiered RtI program. On December 10, 2019, a privately obtained psychoeducational evaluation of the student was conducted by a private psychologist”. Among other things, the psychological evaluation “offered a diagnosis of specific learning disability in reading (decoding)”. Relative to this, and among other things, the district did not conduct its own psychological examination. On September 3, 2020, when the student was in the fourth grade, the parents provided the private evaluation to the assistant director of special education and requested a CSE meeting. “By notice dated October 23, 2020. The parents were invited to a CSE meeting…on November 6, 2020”. The CSE convened on that date and by prior written notice after the CSE meeting, the district summarized the CSE’s recommendation that the student was not eligible for special education services.

“By amended due process complaint notice dated April 14, 2022, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2019-20, 2020-21 and 2021-22 school years”. Among other things, “[t]he parents contended that the 127

district violated its child find obligations … as early as first grade, the 2017-18 school year, which resulted in a denial of a FAPE to the student”. “According to the parents, they voiced concerns regarding the student’s lack of progress throughout her time in the district’s public schools.

By IHO decision dated January 10, 2023, the IHO found that the district violated child find from February 2, 2020 16 through November 6, 2020, when the CSE convened to determine the student’s eligibility for special education. “In particular, the IHO faulted the district for failing to submit progress monitoring records to show the student’s progress while receiving RtI. Among other things, the IHO remanded the matter to the CSE to make another determination of eligibility.

Both parties appealed the IHO’s decision to the OSR. In the first place, the district claimed “that RtI services are general education supports that are outside the jurisdiction of the IHO and, by extension, an SRO under the IDEA and State law”. The SRO disagreed and in summary stated that “the student’s participation in the district’s RtI progress [was] central to determining whether the district met its child find obligations”.

The SRO extensively reviewed the State RtI process and requirements as well as the district’s RtI procedures. See pp. 13-18. Regarding the district’s required written policy, the SRO, among other things, determined that, contrary to State policy, the district did “not identify specific supports available at different tiers, [but] instead refer[ed] to core instruction, targeted academic instruction, and intensive academic instruction”. Further, and also contrary to State policy, the SRO determined that “[t]he district’s written policy does not include a recommended length of time that a student is supposed to spend receiving intensive academic instruction.

After a thorough and detailed review of the student’s participation in the RtI process (see pp. 18 -25), the SRO concluded that “the evidence shows that the district’s implementation of its written RtI policy did not comply with State regulations or State guidance”. “In particular”, the SRO said that “the district did not present much evidence of progress monitoring beyond the charting of a single measure of oral reading fluency; the district did not demonstrate how the student’s progress was monitored on an ongoing basis and how decisions were made to either continue or discontinue specific interventions and intervention tiers. In addition, [the SRO said that] the student’s teacher appeared to paint an optimistic view of the student’s abilities in class. [Her] report cards stated that she was predominantly meeting State and district level standards, and the district’s witnesses testified that her scores on RtI assessments were on grade level; however, the data included in the hearing record does not correlate the student’s rubric grades or assessment scores to grade-level equivalents. The only objective assessment included in the hearing record that could correlate to grade level standards was the March 4, 2020 midyear The February 2, 2020 starting date relative to the IHO’s determination of a violation of FAPE reflected the IHO’s determination that the parents’ claims accrued two years before the date of the initial due process complaint notice, dated February 2, 2022. Neither the parents nor the district appealed this aspect of the IHO’s decision and so this finding was final and binding on the SRO. See 34 CFR 300.514; 8 NYCRR 200.5(j)(5)(v); M.Z. v. New York City Dep’t of Educ., 2013 WL 1314992 at *6-*7 (S.D.N.Y. Mar. 21, 2013).

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assessment using a State assessment reading passage, on which the student earned 11 out of 20 points for a test scope of 55 percent. The witness testimony and the timeline created by the district school psychologist demonstrate[d] that, contrary to State guidance, the student was repeatedly dismissed from Tier 2, without ever establishing well-defined achievement or that she had mastered the targeted skills. In addition, [the SRO said that] the district failed to demonstrate that it relied on a combination of CBMs [curriculum-based measurement] and informal, ongoing assessments (checklists, reading inventories, running records) completed by teachers to monitor progress so that the use of CBM was not the sole index of progress.”

Further, the SRO concluded that “[a]s cautioned against in State guidance … the district’s reliance on a single, curriculum-based measure of oral reading fluency led to unintended consequences such as the student being fast and accurate in word reading but inattentive to the meaning of what is read”.

Based on the above, the SRO stated her conclusion that she “agreed with the IHO that the district’s failure to present evidence of the data collected as part of its RtI process resulted in a lack of evidence regarding the student’s progress for the extended period of time that she was receiving tiered support outside of core instruction; and thus the district violated its child find obligations and failed to establish that the student should not have been referred for special education as of February 2020”.

O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) Dispute: Whether the District conducted evaluations that assessed the student in all areas of suspected disability and otherwise adequately evaluated the student.

Conclusion: The Court upheld the ALJ and determined that the District appropriately evaluated the student during his kindergarten year but did not do so during his first-grade year.

Basis of the Court’s Decision: Prior to offering a student special education services, a District must conduct a full and individual initial evaluation meant to ensure that the student receives an assessment in “all areas of suspected disability” See 20 U.S.C. Section 1414(a)(1)(A), 1414(b)(3)(B). Additionally, the IEP Team is to develop an IEP in consideration of, inter alia, the strengths of the child, the concerns of the parents, the results of the initial evaluation or most recent evaluation of the child, and the academic, developmental and functional needs of the child. See 20 U.S.C. 1414(d)(3). Further, in circumstances of a reevaluation, the student must also be evaluated in all areas of suspected disabilities. See 20 U.S.C. 1414(b)(3)(B).

In this case, prior to the beginning of the student’s kindergarten year, the student’s pediatrician referred the student to a psychologist to see if the student should be formally diagnosed for autism. The psychologist was unable to complete his analysis because of the student’s behavior.

The CSE met during the first part of the student’s kindergarten year. After the parent reached 129

out, the district conducted a “Multidisciplinary Psychological Evaluation.” The district assessed the student for ADHD which was the primary issue identified in medical records and by District employees. As a result of this assessment the District, in an October 31, 2017 meeting, offered the student an IEP. The parent asserts that the district should have evaluated the student for autism. The ALJ found that the district was not on sufficient notice to have an obligation to assess the student for autism or its related symptoms. The Court upheld the ALJ’s findings. It found that the student’s medical records reflected that the student’s primary diagnosis and educational concern was ADHD. Further, as indicated, while the parent had consulted a psychologist to assess the student for autism prior to the beginning of the school year, the Court pointed out that the psychologist was unable to complete the autism assessment and did not qualify the student for autism services at that time. Additionally, the Court pointed to the fact that while the student was observed by District employees to have an inability to stay on task, the student could be redirected back, which, based on the record, indicated symptoms of ADHD and not autism.

The parent further asserts that the student should have been assessed for autism during the balance of his kindergarten year. The ALJ disagreed. The Court agreed with the ALJ. It reasoned that for all of the prior reasons plus the fact that throughout the student’s kindergarten year, District staff observed “continued progress” in the student’s education and also because the student had made several friends as he grew accustomed to the school environment there was insufficient reason to suspect that the student had autism. The Court also pointed out that neither the student’s parents nor his teachers requested a reassessment for autism.

The parent also asserts that the student should have been assessed for autism during his firstgrade year. The ALJ agreed and the Court upheld that determination. Regarding this, the Court specifically pointed to the fact that by this time the student’s psychologist had provided the student with a formal diagnosis of autism prior to first grade and that, additionally, the parents had officially requested that the student be assessed for autism. The Court advised that these factors put the District on notice of the student’s autism.

E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug, 25, 2022) Dispute: Whether the district was in violation of its child find obligation.

Conclusion: The Court upheld the SRO and concluded that the district violated its child find obligation.

Basis of the Court’s Decision: The IDEA creates a duty upon a local education agency to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. This child find obligation applies to children who are suspected of being a child with a disability and in need of special education even though they are advancing from grade to grade. Thus, Courts have held 130

that the child find duty is triggered when there is reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.

In March 2014, when the student in this case was in the second grade, the parents obtained a private psychoeducational evaluation of the student. As a result of the evaluation, the psychologist diagnosed the student with a specific learning disability with impairments in reading rate, accuracy. She also provided “a rule out” of attention-deficit/hyperactivity disorder – primarily inattentive type and recommended monitoring of the student’s attention/executive functioning skills. The psychologist observed that while the student possessed strong nonverbal reasoning skills, his visual processing skills were poor, making reading and to some extent writing, more difficult tasks for the student. The psychologist also opined that across domains, the student’s processing speed was an area of weakness in his profile.

The psychologist included in her evaluation a series of recommendations regarding the student’s education programming. She noted that the parents “might want to share this evaluation with the student’s CSE to determine if he would qualify for a classification as a student with a learning disability”.

The parents shared this evaluation with the CSE at the start of the 2014-2015 school year and, in particular, in September 2014. Neither the parents nor any school district personnel made a referral to the CSE as recommended by the private psychologist. Instead, at a meeting between the parents and school personnel, the parents were advised that the student’s placement in a “co-teach class” and the provision of regular reading assistance sessions in the third grade would be sufficient to enable the student to succeed in third grade.

Because of the student’s continuing difficulties, the parents referred the student to the CSE on October 20, 2015. As a result of a subsequent CSE evaluation as well as an additional private evaluation, the CSE, at its January 14, 2016 CSE meeting classified the student as learning disabled and recommended special education services.

The IHO, upon review of a due process complaint notice, ultimately concluded that the school district did not violate its child find obligations prior to October 2015. Upon its review, the SRO reversed the IHO’s finding that the school district complied with its child find obligations during the 2014-15 school year and a portion of the 2015-16 school year. However, the SRO concluded that since the parents had not requested any relief for the child find violation prior to the time that the district classified the student as a student with a disability and the child find violation had ended, the SRO did not award any monetary relief to the parents.

In Court, the parents seek review of the SRO’s finding that they failed to request relief for the district’s child find violation. The district maintains that there was no child find violation.

In relevant part, the Court pointed out that the SRO found that the school district violated its child find obligation on the basis that the March 2014, private evaluation was sufficient to provide reason to suspect a disability and that the school district was in violation of its child find obligation 131

upon receipt of the report in the fall of 2014 up through the parents referring the student to the CSE in October 2015. The Court said that it should defer to the SRO’s “reasoned conclusions in matters requiring educational expertise” in circumstances where a violation was supported by a preponderance of the evidence. With respect to this, the Court said that the March 2014 report by the private psychologist “unequivocally triggered” the school district’s child find obligation and agreed with the SRO that the district had violated its child find obligation.

With respect to a remedy for the child find violation, the Court agreed with the SRO that apart from testimony at the hearing, the parents did not request any relief for the child find violation.

Notwithstanding its finding that the district violated its child find obligation, the Court found that this did not involve the violation of a FAPE. In support of this conclusion, the Court asserts that this procedural violation did not significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and claims that “[t]o the contrary, the student’s parents participated in every CSE meeting and had unimpeded opportunity to participate in the development of the student’s IEPs”.

However, it should be pointed out that as a result of the child find violation, during the period September 2014 to January 2016, the district failed to provide the parents with any IEP to discuss and comment about.

With no explanation, the Court also suggests that the district’s child find violation does not “deprive the student of important educational benefits entitled by law”. Here again, it should be pointed out that the student – who was eligible for special education -- did not receive any special education services during the period September 2014 to January 2016. This was surely a deprivation of educational benefits to the student.

OSEP QA 21-05; August 24, 2021 Subject: Questions and Answers re Child Find and COVID-19 On August 24, 2021 OSERS issued a letter regarding current federal guidance related to child find.

Among the topics it addressed were a series of questions and answers related to the COVID-19 pandemic. 17 The specific questions and answers are set forth below 18: Q-C-1. What are some of the unique challenges for conducting child find when children participate in on-line or virtual learning?

Generally, children who attend virtual schools or, as experienced during the pandemic, receive instruction virtually, do not have the same degree of face-to-face interactions and in-person 17

The balance of the questions deals with “general child find requirement” and “referral and initial evaluation”.

Where appropriate, the answer to questions C-1 and C-2 repeat the referenced language set forth in the answer to question A-5.

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contacts with a teacher or other school staff as children who attend brick- and-mortar schools on a full-time basis. As such, teachers of these students have limited opportunity for casual observation of a child’s learning abilities and early recognition of issues that may impact their learning. Child find procedures that rely mainly on informal teacher observation and referral may require additional consideration for such children. Where virtual instruction limits or prevents the teacher’s interaction and contact with a child, the SEA and LEA 19 should examine whether existing child find policies and procedures are effective in meeting the State’s responsibilities of identifying, locating and evaluating children who may need special education and related services, such as public awareness campaigns by the LEA or in partnership with a school’s PTA that include information provided in languages spoken in the community and target a wide audience including parents and families, day care and early childhood education providers, summer camps, medical providers, homeless shelters, religious institutions, and kindergarten roundup (i.e., events hosted by elementary schools to facilitate a child’s transition from home to formal education). For older children, activities can include locally administered assessments that measure student academic growth, screening private school students and home school students, meeting with mental health practitioners, sharing information with nonprofit organizations that focus on families and children, and coordinating with State agencies that provide services to children and young adults. Also, the LEA’s outreach efforts and interagency collaboration with housing programs, such as those funded by HUD can help to identify children who are homeless and may be in need of special education. With the increased use of social media, SEAs and LEAs should consider posting child find notices on their websites and social media pages. In general, as child find is an SEA and LEA responsibility, LEAs serving children virtually should not rely solely on referrals by parents as the primary vehicle for meeting IDEA’s child find requirements.

Q-C-2. How might States and LEAs enhance their child find activities during the 2021-2022 school year to address the challenges resulting from educational disruptions due to the COVID-19 pandemic?

SEAs and LEAs should reexamine the efficacy of their existing child find practices and initiate new activities in light of the educational disruptions caused by the COVID-19 pandemic. For example, LEAs may have to conduct additional screenings of children whose academic and behavioral needs may require an evaluation to determine eligibility for special education and related services consistent with 34 CFR 300.304 through 300.311. Additional efforts can be made in increasing awareness of special education supports for students of all ages through coordinated efforts with SEAs, LEAs and associated pubic agencies to highlight the effects of the COVID-19 pandemic on academic performance and social-emotional, behavioral, and mental health needs.

Further, efforts can be made to increase awareness of and access to develop-mental screenings The acronym “SEA” means State Educational Agency; the acronym LEA means local educational agency see 34 CFR 300.28 and 300.41. See also note 4 to guidance document.

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by placing information booths and providing information about the screening process in settings frequented by families (e.g., health departments, physician offices, public parks, amusement parks, shopping malls, and children’s stores), conducting social media campaigns on multiple online platforms, partnering with other stakeholders such as the PTA, or holding screening events in the community. Additional examples of child find activities include public awareness campaigns by the LEA or in partnership with a school’s PTA that include information provided in languages spoken in the community and target a wide audience including parents and families, day care and early childhood education providers, summer camps, medical providers, homeless shelters, religious institutions, and kindergarten roundup (i.e. events hosted by elementary schools to facilitate a child’s transition from home to formal education). For older children, activities can include locally administered assessments that measure student academic growth, screening private school students and home school students, meeting with mental health practitioners, sharing information with nonprofit organizations that focus on families and children, and coordinating with State agencies that provide services to children and young adults.

Also, the LEA’s outreach efforts and interagency collaboration with housing programs, such as those funded by HUD can help to identify children who are homeless and may be in need of special education. With the increased use of social media, SEAs and LEAs should consider posting child find notices on their websites and social media pages.

Q-C-3 If a student has received limited instruction due to educational disruptions as a result of the COVID 19 pandemic and also made little academic progress, should the student be referred for an evaluation to determine eligibility for special education and related services?

Not necessarily. Levels of student performance primarily attributable to limited instruction do not mean the student requires special education and related services under IDEA. IDEA’s child find and eligibility procedures are designed to identify, locate, and evaluate students with a suspected disability to determine whether, as a result of the disability, the student requires special education and related services. IDEA’s regulations in 34 CFR 300.306 (b) specifically state that a child must not be determined to be a child with a disability if the determinant factor is due to a lack of appropriate instruction in reading or math. LEAs must examine individual referrals for special education and should work with families to determine additional general education supports and interventions that can appropriately meet the child’s needs that are attributable to limited instruction as a result of the COVID-19 pandemic and not because the child is suspected of having a disability under IDEA. LEA staff should document these supports when they provide prior written notice to parents under 34 CFR 300.503, explaining the reasons why the LEA will not conduct an evaluation to determine eligibility for special education and related services for their child.

Q-C-4. When a parent shares that their child contracted COVID-19, has “long COVID”, or has other post-COVID conditions, and the symptoms of the child’s condition (such as fatigue, mood changes, or difficulty concentrating) are adversely impacting the child’s ability to participate and

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learn in the general curriculum, must the child be referred for special education and related services?

Yes. If a child experiencing symptoms from “long COVID” is suspected of having a disability (e.g., other health impairment) and needs special education and related services under IDEA, they must be referred for an initial evaluation to determine the impact of the “long COVID” symptoms and the child’s academic and functional needs.

Note here that the Q and A document includes a number of foot notes setting forth where additional information can be found.

In re Toledo Pub. Sch., Ohio State Administrative Agency, CP-0117-2021, Dec. 1, 2021, 121 LRP 43127 Dispute: Was the district in violation of its Child find responsibilities.

Conclusion: The state administrative agency found that the district was in violation of its Child find responsibilities.

Basis of the State Administrative Agency’s Decision: The parent sets forth a complaint to the state administrative agency to the effect that the district had violated the federal Child find regulation at 34 CFR 300.111. This regulation is to make sure that all districts “must have in effect policies and procedures to ensure that all children with disabilities” “regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated”.

The administrative agency determined that the district was in violation of its Child find responsibilities. The administrative agency cited to the fact that (1) “the [s]tudent earned 0 credits and obtained Fs in all of his classes for both semesters during the 2020-2021 school year”, (2) “the [s]tudent’s records also demonstrated concerns in the areas of attendance and behavior”, and (3) “the [d]istrict denied a request to evaluate and stated that it did not suspect a disability due to a lack of intervention and excessive absenteeism”. 20 The administrative agency said that (3), above, was contrary to State regulation providing that “a school district may not use interventions to delay unnecessarily a child’s being evaluated to determine eligibility for special education services” and that “[i]f such interventions have not been implemented prior to referral for evaluation, appropriate interventions shall be implemented during the same sixty-day time frame during which the school district conducts a full and individual evaluation”.

Note here that the state administrative agency’s finding with respect to (3), above is consistent with federal Department of Education guidance. In particular, OSEP opinion letter 11-07 sets forth, among other things, that States and local educational agencies “have an obligation to Among other things, the state administrative agency also found that the student had a section 504 plan and diagnoses of Attention Deficit/Hyperactivity Disorder and Oppositional Defiant Disorder.

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ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI strategy” and more bluntly that “[t]he use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation”.

As a consequence, the state administrative agency required the district to implement a corrective action plan. Among other things, the corrective action plan provided that the district receive appropriate training from the state administrative agency and that the student be evaluated in accordance with state regulations.

KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) Dispute: Did the district comply with its Child Find obligation?

Conclusion: The district complied with its Child Find obligation.

Basis of the Court’s Decision: The Court set forth that a district complies with its Child Find obligation upon a showing by a preponderance of evidence that “school officials overlooked clear signs of disability and were negligent in failing to order testing or that there was no rational justification for not deciding to evaluate”. The Court continued that because a violation of Child Find is “procedural”, relief is obtained “only if the violation (1) impeded the child’s right to a Free Appropriate Public Education or FAPE, (2) significantly impeded the parent’s opportunity to participate in the decision -making process regarding the provision of a FAPE to the parents’ child or (3) caused a deprivation of educational benefits”; which is to say that “the parents must articulate how a procedural violation resulted in the ... substantive inadequacy of the education offered to the child or affected the decision-making process”.

With the above in mind, the Appeals Court held that the parent “did not adequately explain how any alleged violation of the district’s Child Find obligation deprived (the child) of educational benefits or impeded (the parents’) ability to participate in the decision-making process”. The Court also advised that the parent did “not identify an appropriate remedy” for the claim.

COMPENSATORY EDUCATION D.C.G. v. New Y0rk City Dep’t of Educ., 23 Civ. 1337 (JPC)(JW), 2024 WL 1343598 (S.D.N.Y. Mar. 30, 2024) Issue: compensatory education Dispute: In this case, was an award of compensatory education in the form of 700 hours of oneto-one tutoring necessary to address a denial of FAPE for two consecutive school years.

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Conclusion: The Court concluded that in this case an award of compensatory education in the form of 700 hours of one-to-one tutoring was not necessary to address violations of FAPE for two consecutive school years.

Key Take Away: The Court held that in this case compensatory tutoring was not required as the student’s unilateral placement was addressing her needs and she had made significant progress.

Reasoning: The student is eligible for special education as a student with a learning disability. At the time of the lawsuit, the student was seventeen years of age. She attended eighth grade at a public school during the 2019-20 school year. During ninth grade the student “received a combination of hybrid and remote learning” at the same public school during the 2020-21 school year. The student was assessed in the Spring of her ninth-grade year by a Ph. D provider of tutoring services who “strongly recommended” at that time that she receive 700 hours of “one-on-one multi-sensory tutoring”. In March 2021, the district held a CSE meeting. At that time, the parents requested that the student be placed at a nonpublic school. The district rejected that request and the CSE recommended that the student continue to attend an “ICT class” at a public school. “The IEP created after the meeting characterized the student’s grades for English, AP Human Geography, and Earth Science as below grade standards and [the student’s] grades for Algebra II as exceeding grade standards. The student finished the school year “with a cumulative average of 80.50 percent and earned twenty-one credits toward graduation”. On August 25, 2021, the parents advised the district that they intended to unilaterally place the student at a private school and seek payment for tuition and an award of compensatory education. The student attended the private school for the entirety of the 2021-22 school year, when she was in the 10th grade.

The parents filed a due process complaint notice on September 1, 2021. The complaint alleged that the district failed to provide the student with a FAPE for the 2019-20, 2020-2021, and 202122 school years and requested 700 hours of compensatory education “in the form of private tutoring services for the 2019-20 and 2020-21 school years for the lack of a FAPE in those two school years.

At the impartial hearing, the district conceded that it had failed to provide the student a FAPE for the 2019-20, 2020-21, and 2021-22 school years. The IHO concluded that the private school was appropriate for the student and awarded the parents’ payment for tuition for the 2021-22 school year. The IHO denied the parents’ request for “compensatory tutoring”, “finding that (1) [the private school] had the depth and breadth of individualized and specialized curriculum and services to adequately address the student’s unique needs and (2) [the student] had made significant progress under her current program, which the IHO noted included Special Education Teacher Support Services”. The parents appealed the IHO’s denial of compensatory education to a State Review Officer, who denied the parents’ request for relief and dismissed the appeal.

In his decision, the SRO concluded that “the IHO was reasonable in finding that [the private school] was addressing [the student’s] needs, that the student had made significant progress at 137

[the private school] and that although the IHO understood the parents’ fears, the parents’ request for compensatory education was not supported by the evidence”.

The parents proceeded to Federal Court by filing a lawsuit on February 16, 2023. The matter was referred to a United States Magistrate Judge, who concluded on February 15, 2024 “that both the IHO’s decision and the SRO’s decision were well reasoned and adequately supported by the evidence”. Among other things, she also concluded that the SRO’s decision “was entitled to deference” and that there was no error in the refusal of the IHO and SRO to provide the student with “compensatory education in the form of 700 hours of one-on-one tutoring”.

The parents filed objections to the Magistrate’s decision. The parents argued that the Magistrate “erred in deferring to the SRO decision, in finding the SRO’s decision to be consistent with the weight of the evidence, in concluding that [the student] had reached grade level functioning while at [the private school], and in determining that gaps resulting from the prior FAPE denials had been bridged during [the student’s] attendance at [the private school]”. As a result of its review of the parents’ objections, the Court concluded that the Magistrate correctly found that it should defer to the SRO’s decision and in finding that the decision was consistent with the weight of the evidence. With respect to the student’s academic progress during the 2021-22 school year when the student was enrolled at the private school and in particular whether the student was performing on grade level by the time the case was before the IHO, the Court found that this issue was not relevant as the SRO did not make this finding but instead concluded that “any prior gaps caused by the FAPE denials had been bridged and the SRO rested his conclusion on that finding”. Emphasis supplied. Further, the Court concluded that it was appropriate for the SRO to rely on this question. This is because, the Court said, that compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” See Doe v.

East Lyme Bd. of Educ.,v, 790 F.3d 440, 123 (2d Cir. 2015). Regarding the claim that the Magistrate erred by concluding “that the SRO determined that the private school] had erased all of [the student’s] academic benefits, the Court pointed out that no such SRO determination had been made. As indicated before, the determination that had been made was that the Magistrate had agreed with “the SRO’s clear findings that any deficits caused by the FAPE denials had been bridged. Emphasis added.

Finally, the parents asserted “that denying their requested compensatory education is contrary to Second Circuit precedent because such a decision renders the student’s right to a FAPE during the 2019-20 and 2020-21 school years illusory, and it violates the principle that Congress did not intend to create a right without a remedy”. Here, the Court pointed out tht the student’s “right to a FAPE is not illusory nor is it a right without a remedy because the SRO found that the damage she suffered – the educational progress she lost due to the FAPE denials – had been adequately remedied by the instruction she was receiving at [the private school]”. The Court pointed out that any instruction that would have been ordered in addition to this would have amounted “to a supplemental amount of monetary damages, which is impermissible under the IDEA.” 138

Tobuck v. David Banks, 23 Civ. 1356 (LGS), 2024 WL 1349693 (S.D.N.Y. Mar. 2024) Issue: compensatory education, injunctive relief Dispute: Subsequent to an award of compensatory education by the IHO, which was not appealed, and after the expiration of the school year the student turned twenty-one, could the parent file a due process complaint notice asserting a violation of the IDEA and that the student was therefore eligible for another year of special education or was the parent required to file an action in court seeking to enforce the IHO’s order.

Conclusion: Subsequent to an award of compensatory education by the IHO, which was not appealed, and after the expiration of the school year the student turned twenty-one, the parent could not file a due process complaint notice asserting a violation of the IDEA and that the student was therefore eligible for another year of special education but the parent could seek to enforce the IHO’s order in court Key Take Away: Subsequent to the end of the school year in which a student turns twenty-one, the student has no further right to special education and procedural protections under the IDEA. The only way that a student can receive further special education is as a result of an award of compensatory education. If the school district does not provide that compensatory education, the parent may seek judicial relief to enforce the compensatory education award.

Reasoning: The student in this case is eligible for special education as a student with multiple disabilities and had his twenty-first birthday during the 2021-2022 school year.

The parent filed due process complaint notices in August 2020 and April 2021. In combination, the notices set forth that the district had failed to provide the student with a FAPE from the beginning of the 2018-2019 school year to the time of the administrative proceeding in 2021. On July 19, 2021, the IHO issued a decision finding that the district had denied the student a FAPE during the 2018-2019, 2019-2020, and 2020-2021 school years as it had committed “gross violations” of the IDEA. The IHO concluded that the student was eligible for compensatory education. The IHO also pointed out that as the student was turning twenty-one shortly, he would no longer be eligible for special education under the IDEA but that compensatory education was an equitable remedy “that may require a school district to fund a child’s education beyond their statutory eligibility”. The IHO additionally found that he was unable to determine the amount of compensatory education due the student as the record of the proceeding was not “sufficient”. The IHO therefore ordered an independent educational evaluation (IEE) “to determine what if any changes must be made to [the student’s] IEP as well as the extent of compensatory education, he [was] to receive to be paid for by [the district” but subject to a maximum of three years. The IEE evaluator determined that “the student should remain in his 139

current special education setting” at the private school for the maximum three-year period identified by the IHO. The district did not appeal.

The parent filed a further request for an impartial hearing on July 6, 2022, for the 2022-2023 school year. She asserted that the district had failed to provide the student with a FAPE, that the student’s private school was appropriate, and that equitable considerations were in favor of the student. As a result, she asserted that the student was eligible under the IDEA for funding for the 2022-2023 school year. The IHO dismissed the parent’s complaint with prejudice. She held that she “lacked jurisdiction and authority to do so” under the IDEA as the student was over twenty-one years of age. She advised that the student had a separate and “non-convergent” remedy for prospective compensatory relief and that this originated from the IHO’s July 2021 order. This being the case, the IHO indicated that the parent had sought “the wrong relief in the wrong forum.” She added that the student’s “proper remedy for non-compliance would be to attempt to seek enforcement” of the October 2021 order “instead of filing a due process complaint [] in another forum as an IHO does not have the power … to enforce an earlier order of an impartial hearing officer”.

The parent appealed the IHO’s order to the Office of State Review (OSR). An SRO upheld the IHO’s decision and order in all respects. The SRO “distinguished between an equitable award of compensatory education … and an award of extended eligibility, which extends the school district’s IDEA statutory obligation to a student”. The SRO held that the July 2021 order provided the student with an equitable award of compensatory education and not an award of extended eligibility to special education under the IDEA. Among other things, the SRO indicated “that the proper forum for [the parent] to enforce the [July 2021] compensatory education award [was] in court, stating that “neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers”.

The parent filed suit against the district on February 16, 2023 “seeking to reverse the SRO’s decision and grant funding for [the student’s] placement at [the private school] that the student attended during the 2022-2023 school year”. That suit did not seek the enforcement of the July 2021 order.

In its decision, the Court first “adopt[ed] the SRO’s determination that the IDEA’s statutory rights, and procedural mechanisms to enforce them, are distinct from equitable rights created by a compensatory award and its enforcement”. The Court further quoted the SRO’s decision that “compensatory education is not a full extension of the IDEA itself…. Instead, enforcement of a compensatory education award would need to proceed in a forum with authority to enforce the IHO’s decision, and neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers”. The Court agreed with the SRO that it “made sense” as “to do otherwise could result in potentially perpetual challenges to IEPs developed during the period of extension and additional awards of compensatory education which could result in many more years of eligibility than intended”.

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Consistent with the above, the Court concluded that “the IDEA grants the right to a FAPE to students through the age of 21. See 20 U.S.C. 1412(a)(1). New York law provides for IDEA eligibility through the end of the school year in which a student turns twenty-one. See N.Y. Educ.

Law 4402(5).” The Court then pointed out that the school year in which this student turned twenty-one was the 2021-2022 school year and “[t]herefore the IDEA no longer provides him the right to a FAPE and related statutory benefits for the 2022-2023 school year”.

Regarding the parent’s argument that the July 2021 order “extended the student’s right to a FAPE – and the benefits that flow from it under the IDEA – beyond age twenty-one”, the Court disagreed and, consistent with the above, concluded that the order “directed the creation of an IEE and that [the student’s] year(s) of compensatory education to be determined and implemented according to that IEE”. The Court continued that “[b]ecause the IHO’s decision did not extend the student’s statutory right to a FAPE beyond age twenty-one, the parent could not file a due process complaint alleging failure to provide a FAPE as [the parent] attempted to do here".

However, in light of the parent’s inability to obtain redress through the IDEA, her right to enforce the July 2021 order in court, the lack of a dispute that the July 2021 order granted the student a right to an award of compensatory education pursuant to the IEE, the Court granted the parent leave to amend the complaint to seek enforcement of the July 2021 order and to receive compensatory education as an appropriate form of equitable relief.

Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) Dispute: In circumstances where the SRO determines that compensatory education is warranted as a result of a manifestation determination review team’s erroneous determination that a student’s conduct was not a manifestation of a student’s disability, on what basis should the SRO remand the matter to the IHO for a determination of an appropriate amount of compensatory education and how should the IHO determine, upon remand, the amount of compensatory education owed to the student.

Conclusion: In circumstances where an IHO does not determine an award of compensatory education owed as a result of an unlawful determination that the student’s conduct was not a manifestation of the student’s disability, the IHO should determine the length of the student’s suspension and the amount of instruction and services the student should have received compared to the amount of instruction and services the student did receive and the quantifiable benefit of that, and based on the record arguments and facts before the IHO, “fashion an appropriate compensatory education award”.

Basis of the SRO’s Decision: In an incident report on or about October 6, 2022, the student was described as self-disclosing that he wanted “to hurt himself and others”. Prior to this time and at a meeting on September 141

30, 2022, the CSE determined that the student continued to be a student eligible for special education and related services as a student with autism. The CSE recommended, among other things, that the student attend an 8:1+1 special class and receive related services of speech and language therapy. At this time, the student was in the 10th grade and had been diagnosed with autism and ADHD. As a result of the incident in question, the student was suspended from school. A disciplinary hearing as well as a manifestation determination review (MDR) hearing were also scheduled. The charge was upheld at the suspension hearing and the MDR team concluded that the student’s misconduct was not caused by his disability.

The parent filed a due process complaint notice on February 6, 2023. Among other things, it alleged that the MDR team erred and that the student’s conduct was a manifestation of his disability, that he was wrongfully denied access to school, and that “the student’s educational records wrongfully contained damaging information” and should be expunged. The parent asserted violations of the IDEA and of Section 504 of the of the Rehabilitation Act of 1973.

For relief, among other things, the parent requested that the IHO provide an order compelling the district to provide compensatory education for all missed educational and related services during the suspension.

Upon the hearing, “the IHO found that the student’s conduct did not clearly express homicidal intent or an actual homicidal plan and was an expression of the student’s feelings” and “further found that the student’s conduct was reflective of his agitated state and disability. Among other things, the IHO also found that the student “was deprived of education and services during the period of suspension”, that the student “should receive compensatory educational services” as a result of that, and that “all references to the student’s suspension should be expunged from the student’s educational records”.

Regarding the parent’s compensatory education claim, the IHO found that “the student should receive compensatory educational services” but ordered “an unspecified amount” of such services and “did not sufficiently develop the hearing record on this issue”.

The SRO concluded that he was “not convinced that the student’s conduct was not a manifestation of the student’s disability as the student’s conduct was not dissimilar to the social/emotional and behavioral needs that were targeted by the September 2022 IEP” and that “[a]ccordingly, there is insufficient reason to overturn the IHO’s conclusion on this point”.

Regarding the IHO’s finding that the student was owed compensatory education services, the SRO found that the student “was deprived of education and services during the period of suspension.” However, the SRO also found that “the IHO erred in ordering an unspecified amount of compensatory educational services and did not sufficiently develop the hearing record on this issue”.

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With respect to the parent’s argument that “the CSE can determine appropriate compensatory education”, the SRO explained that “it is the IHO’s role to fashion [such] relief” and “an agency or court may not delegate this responsibility to a school district”. The SRO determined therefore that it was appropriate to remand the matter to the IHO. Upon remand, the SRO’s direction to the IHO was that “[a]s the IHO correctly determined that the student’s conduct was a manifestation of his disability, the district should not have removed the student to an IAES as part of a disciplinary change in placement”. The SRO said that “[t]he student is entitled to compensatory education for missed services during the time of suspension” and that “[o]n remand, the IHO should develop the hearing record to determine the length of the student’s suspension and the amount of instruction he would have received pursuant to his September 2022 IEP had he attended school.” Further, the SRO advised that it was the district’s obligation on remand to provide the IHO with the amount and type of program and services that the student received, “whether such instruction conferred any quantifiable educational benefit to the student” and “present an argument” regarding the appropriate relief to the student given any missed educational services. With that information in hand, the SRO said that the IHO should, “relying on the hearing record and the arguments presented by the parties,” determine the amount of instruction the student should have received minus the amount of IAES instruction the student did receive and on the basis of that, “fashion an appropriate compensatory education award.”

Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023) Dispute: Whether the IHO correctly determined that the student was eligible for an award of OT compensatory education as well as reimbursement for OT services provided.

Conclusion: The SRO affirmed the IHO and determined that the student was eligible for an award of compensatory OT as well as reimbursement for OT services provided.

Basis of the SRO’s Decision: The student attended a private school for the 2020-21, 2021-22, and 2022-23 school years. “In April 2021 (pre-kindergarten), the parents became aware that the student had been spending much of his school day in the principal’s office due to behavior problems.” At that time, the parents made arrangements and “hired a behavioral specialist to observe the student and provide guidance to his teachers”. During the fall of the 2021-22 school year and through February of that school year, the parents made private payments to provide the student with an OT evaluation, OT services, and a special education itinerant teacher services (SEIT)/behavior specialist. At the end of the 2021-22 school year, the parents worked with the school so that the student would be “paired with a supportive team of teachers for the following school year”.

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In early 2022, because of his “continued struggles in the classroom”, the private school suggested that the student be evaluated by the district to determine his eligibility for special education services. The student received a number of evaluations in February and March 2022.

The CSE convened on April 5, 2022, and found the student eligible for special education as a dually enrolled student with an emotional disturbance and created an individualized education services program (IESP) for the student with an implementation date of May 3, 2022. The CSE recommended that the student receive OT, individual counseling, and a full-time 1:1 paraprofessional. The CSE also completed an FBA during that meeting. The parents had the student privately evaluated in October and November 2022, which resulted in an evaluation report in December 2022.

The parents filed a due process complaint notice dated April 3, 2023 alleging that the district failed to provide the student with a FAPE during the 2020-21, 2021-22, and 2022-23 school years.

Among other things, the parents alleged that the district failed in its child find obligations for the 2020-21 school year and a portion of the 2021-22 school year. For relief, the parents requested reimbursement for the OT, SEIT, and tutoring services they had provided, an order to fund a 1:1 behavioral support professional an independent FBA and BIP, reimbursement for the October 2022 OT private evaluation and the December 2022 private neuropsychological evaluation, and to fund appropriate compensatory services.

The IHO, among other things, directed the district to fund compensatory education consisting of 72 hours of individual OT. This was in addition to the IHO’s determination that the parents should be awarded reimbursement for the cost of the student’s unilaterally obtained OT services.

Regarding compensatory education, the SRO has explained that “[t]he Second Circuit Court of Appeals “generally, appears to have adopted a broader reading of the purposes of compensatory education” than at least one Circuit, the Third. Compare P.P. v West Chester Area Sch. Dist., 585 F.3d 727, 739 (3rd Cir, 2009) with Doe v East Lyme Bd. of Educ., 790 F. 3d 440, 456-57 (2d Cir. 2015). The SRO has further explained that “the Second Circuit’s approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent’s request for tuition reimbursement is denied under a Burlington/Carter analysis or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE”. Regarding the latter, see V.W. v. New York City Dep’t of Educ., 2022 WL 3448096, at *5-7 (S.D.N.Y. Aug. 17, 2022), which found “that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of both education placement and additional services may be necessary to provide a particular student with a FAPE [for the same time period]”.

Upon review, the SRO found that “the evidence in the hearing record support[ed] the IHO’s determination that the student [was] entitled to 72 hours of compensatory OT in addition to reimbursement for private OT obtained”. As a consequence, the SRO found that “the IHO 144

determination that the student [was] entitled to an award of 72 hours of compensatory education to remedy the district’s failures in addition to an award for reimbursement for unilaterally obtained services, [would be] upheld”.

Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) Dispute: Was the IHO’s order of compensatory education appropriate?

Conclusion: The SRO found that the IHO’s order regarding compensatory education was inappropriate.

Basis of the SRO’s Decision: Medical diagnoses by an ophthalmologist indicated “amblyopia in the [student’s] left eye, exotropia in the left eye, posterior lenticonus, and blindness in both eyes”. “[T]he student should be considered blind and receive full vision services”. Among other things, the parent asserted in the due process complaint notice that the student “exhibited characteristics of cortical visual impairment (CVI) and that the district’s failure to recommend vision education services (VES) constituted the denial of a FAPE for the student”. “[T]he IHO found that the district failed to evaluate the student’s needs related to her exhibitions of CVI, which [the IHO] held to be an issue that the district should have identified as far back as 2009, and that the district’s failure to evaluate the student’s vision needs or recommend vision education services constituted a gross violation of the IDEA” which in part supported a finding that in addition to tuition reimbursement the student was due “four years of extended eligibility of special education services at a private school until [the student] reached the age of 25”. The SRO concluded that there was “nonretrospective evidence in the hearing record that supports the IHO’s determination that the district failed to sufficiently evaluate the student’s vision needs or offer vision services” and that “[a]s such, the IHO’s determination that the district denied the student a FAPE … must be upheld”. The SRO also agreed with the IHO that the parent’s request for two years of tuition reimbursement was an appropriate remedy.

However, the SRO also concluded that the evidence was not sufficient to support a finding that an appropriate award of compensatory education included “four years of extended eligibility of special education services until [the student] reached the age of 25”. With respect to this, the SRO said that the student had at least two or more years of special education before her right to special education would expire; that as a result of the decision that the district had denied the student a FAPE, the student had been awarded tuition reimbursement for the 2020-21 and 202122 school years; that during this two year period, the student had a right to challenge future CSE recommendations; “that the student had been making gradual progress in the district program during the school years at issue” and was “making additional progress in the unilateral placement”; that regarding her vision needs, the record showed that despite the district’s violations of a FAPE, “the student was able to make progress and access her education”; and that the student began receiving vision education services at the private school during the 2020-21 145

school year and “had been steadily progressing in almost all of her [private school] goals [including] achieving two of her vision goals”. In light of the “mitigation” shown, the SRO concluded that the IHO’s award of two years of tuition reimbursement at the private school represented “a proportionate and appropriate remedy for the district’s denial of a FAPE to the student”. The SRO also pointed out that the IHO had based the finding of a “gross” violation of FAPE, among other things, on the conclusion that the denial of FAPE had begun in the 2008-09 school year. With regard to this, the SRO said that she “was not aware of any authority from the Second Circuit Court of Appeals that would support the broad premise that relief could be awarded to remedy some portion of violations that occurred in school years that were barred by the statute of limitations (but see G.L. v Ligonier Valley Sch. Dist. Authority, 802 F.3d 601, 616 [3rd Cir. 2015])”. She also found that “[i]n any event, here the IHO failed to explain why the student’s district-funded attendance at [the private school] [and the services that she received there] was not adequate to remedy the FAPE denial, and therefore the IHO’s award was inappropriate on equitable grounds”. Finally, the SRO referenced the IHO’s remedy and pointed to the fact that it involved “a prospective placement at [the private school] for four years” which, “under certain circumstances, [had] the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs”.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: May a district be required to provide both tuition reimbursement and compensatory education during the same time period.

Conclusion: The SRO concluded that, in the circumstances of this case, it would be appropriate for the student to receive both tuition reimbursement for tutoring services and compensatory education during the same period of time.

Basis of the SRO’s Decision: In this case, the SRO found that the student was eligible to reimbursement for tutoring expenses and also for compensatory education. The district had argued that the parents were “double dipping by seeking both reimbursement for private reading instruction and compensatory education for the same time period”.

The SRO first pointed out that compensatory education is “an equitable remedy that is tailored to meet the unique circumstances of each case”. With respect to caselaw, the SRO pointed out that “[s]ome courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period” and cited to two cases decided by the Third Circuit Court of Appeals.

The SRO also cited to a case in the Southern District of New York, which had overruled a previous SRO decision, for the proposition that “awards of tuition reimbursement and compensatory 146

education are not mutually exclusive and that an award of both education placement and educational services may be necessary to provide a particular student with a FAPE”. See V.W. v.

New York City Dep’t of Educ., 2022 WL 3448096, at *5-*7(S.D.N.Y. Aug. 17, 2022).

After further discussion, the SRO concluded that “it would appear that an award of reimbursement for unilaterally obtained services and an award of compensatory reading instruction based on the same denial of FAPE for the same school years, under the circumstances presented in this matter would not be duplicative”. Consistent with this, based on “the totality of the evidence in the hearing record”, the SRO determined that “the parents’ unilaterally obtained reading instruction delivered during the 2021-22 school year, while appropriate, was insufficient to remedy a denial of FAPE beginning in February 2020 and continuing through the 2021-22 school year”.

The SRO found that “a reasonable award of compensatory education [was] 360 hours of direct reading instruction”.

Application of a Student with a Disability, Appeal No. 23-022 (Mar. 17, 2023) Dispute: Should compensatory education be awarded on the basis of a lapse of pendency services.

Conclusion: The SRO vacated the IHO’s decision and concluded that based on the failure of the district to provide pendency services the student should be awarded compensatory services.

Basis of the SRO’s Decision: In this case, among other things, the parties agreed that the student’s pendency placement for the summer portion of an extended school year program included PT, speech-language therapy, and OT as related services. Such summer services, however, were never delivered as the district was not able to find related service personnel to provide the required services. Therefore, the district informed the parent that “make-up” services would be provided over the course of the regular school year. Regarding this, the IHO read the terms of the pendency agreement to provide for this and that to do under in such circumstances would not be violated. Regarding compensatory services, the IHO found “that it was unnecessary to award compensatory education on top of the make-up related services provided to the student …”.

The SRO did not agree. He construed the pendency agreement to allow for rescheduled and make up sessions “when a related service provider may have scheduled a session to work with a student but that due to illness or other similar reason the session might have to be rescheduled and made up”. In this case, the SRO pointed out that “no provider schedules were established for the entire summer because the district was unsuccessful in its efforts to have providers at all despite the parties’ agreement that 12-month services were required”. The SRO said that “there 147

were no scheduled sessions, no cancellations, and no makeups scheduled and remediation of the lost related services did not begin until after the regular school year commenced … “ Consistent with this, the SRO found “that the placement as implemented without the provision of the related services constitute[d] a failure to maintain the student’s educational placement under pendency, notwithstanding the district’s intentions to provide make-up related services at a later time during the regular 10-month portion of the school year.” As a consequence, the SRO reversed the IHO and vacated the decision in that regard.

Regarding compensatory services, The SRO cited to Second Circuit for the proposition that “where a district fails to implement a student’s pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy”. See Doe v. East Lyme Bd. of Educ., 790 F3d 440, 456 (2d Cir. 2015); See also Student X v. New York City Dep’t of Educ., 07-CV-2316 (NGG)(RER), 2008 WL 4890440, *25-*26 (E.D.N.Y. Oct. 30, 2008). The SRO also cited to the Second Circuit for the proposition that “[i]n calculating a compensatory education award for a lapse in pendency…the purpose of the stay put provision to guarantee the same general educational program should be taken into account” 21 Doe v. East Lyme Bd. of Educ., 962 F.3d 649, 665-66 (2d Cir. 2020). In this case, the SRO said that “the compensatory education award should include the compensatory pendency services owed or [if the student’s needs have changed] analogous educational services appropriate to the student’s needs”. See East Lyme 790 F.3d at 456-57. Reflecting the fact that the parties had agreed in the pendency agreement “that cancelled related service sessions could be made up at a later date”, the SRO saw “little reason not to order similar relief for services that were never scheduled in the first place due to the failure to locate providers”.

With all of this being the case, the SRO “order[ed] the district to provide compensatory pendency services on an hour for hour basis to remedy the number and type of missed sessions required pursuant to the pendency agreement” and ordered the district “to provide the compensatory services to the extent that it has not already done so” and that to be “completed within one year of the date of [the SRO’s] decision”.

R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) Dispute: Was the student eligible for compensatory education Conclusion: The Court reversed the SRO and determined that the matter should be remanded to the IHO to supplement the record and determine an appropriate compensatory award, if applicable.

Basis of the Court’s Decision:

In this case, since the pendency agreement in relevant part provided for related services, “the same general educational program” here would also be related services.

21

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The IHO determined for the period of time March 14, 2018 through June 30, 2019 the student was not denied a FAPE. The SRO reversed the IHO’s decision and determined that during that period the district denied the student a FAPE. 22 At the same time, the SRO determined that the parents were not entitled to compensatory education because their request for an award of prospective placement of another year at the student’s private school was “speculative” and that the parents’ conduct “weighed against granting relief”.

The plaintiffs commenced an action in District Court challenging, among other things, the SRO’s decision that the student should not be granted compensatory education. At that time, the district had dropped its contention that it had offered the student a FAPE during the above time period. Therefore, this was not an issue before the Court.

The Court held that “[i]n enacting the IDEA, Congress did not intend to create a right without a remedy”; that “[t]he IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE [;] and [that] the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for a denial of a FAPE” Moreover “[s]uch compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”. “In some situations, where the record reflects that the alleged deficiencies suffered by the student have already been mitigated (or even totally alleviated), an award of compensatory education may not be required”.

The Court determined that here, it was “not clear” that the latter was the case and that “[a]bsent factual findings that there [was] no plausible way to remediate the nearly year and a half denial of FAPE … [the] Court is not prepared to prematurely shut the door on [the parents’] claim for relief”.

With respect to the parents’ request for prospective relief of another year at the student’s private school, the Court held that “[g]enerally SRO determinations with respect to prescribing compensatory education plans are entitled to significant deference because such determinations involve matters of educational policy”. The Court therefore found that “the SRO’s determination that an additional year at [the student’s private school] is inappropriate to compensate [the student]” for the [d]istrict’s prior denial of a FAPE is affirmed”.

At the same time, the Court found that “the SRO’s inquiry should not have ended there” as the parents requested before the SRO “any other, further, or different compensatory education as deemed appropriate”. Regarding this, the Court found that “[t]he SRO should have considered whether any such compensatory education could be reasonably calculated to compensate [the student]”. The Court said further “[t]he fact that [the district] conceded that there was a violation This was based on the fact that the district had failed to conduct an FBA/BIP and the CSE’s recommendation to continue the student in an ICT classroom for the remainder of the 2017-18 school year when the student’s teachers had already concluded that he was clearly failing to progress.

22

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of the IDEA and a subsequent denial of a FAPE satisfies the [parents’] burden of proving entitlement to a properly crafted compensatory award”. With respect to the parents’ obligation to propose “a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record, [the patent] need not have a perfect case to be entitled to a compensatory education award”. The Court wrote that “once a [parent] has established entitlement to an award, simply refusing to grant one [is inappropriate]”. Moreover, the Court stated to the Court-developed principal that “an IHO may provide the parties additional time to supplement the record if they believe there is insufficient evidence to support a specific award [;] but simply choosing instead to award [the parent] nothing does not represent the qualitative focus on the child’s individual needs” and so was also inappropriate.

The Court also did not “agree with the SRO’s second purported basis for denying relief” which was that the parents’ “conduct precluded it”. The Court said that it “decline[d] to afford deference to the SRO’s single paragraph analysis of [the parents’] conduct”. The Court said here that “[o]nly a thorough and careful equities analysis would be entitled to deference”. The test, the Court said, was that parental conduct “should not preclude relief” unless such was “uncooperative, obstructive, or otherwise unreasonable”. Contrary to this, the Court found that the parents’ decisions “were made with [the student’s] best interests in mind and that any delay in conducting evaluations resulted primarily from the [d]istrict’s own conduct”. 23 The Court further found that “[t]o the extent that the SRO’s decision to deny relief was based on its assertion that [the student’s] lack of progress was never due to any academic needs or cognitive delays and solely the result of interfering behaviors, that [this] alone does not render impracticable an award of compensatory education. The Court said that “[w]hether compensatory education for [the student] would address academic needs, interfering behaviors, or any other needs is not relevant to its plausibility as there are a wide range of services that can be implemented as compensatory education”.

The Court additionally found that “[t]he paucity of the record before this Court on the issue [of compensatory education] precludes crafting such a remedy at this stage”. It concluded that “[t]he IHO, however, after supplementation of the record, will be in a better position to structure a plan appropriate for [the student] including similar kinds of services or others”. The Court also felt that “remanding to the IHO is appropriate because the Court [believed] that the IHO should provide [the parents] with an additional opportunity to supplement the record with evidence necessary to support a compensatory award that is reasonably calculated and individually tailored to [the student’s] needs and demonstrates a causal relationship between [the student’s] current educational deficits and his earlier denial of a FAPE”.

The Court concluded that “[t]he SRO’s determination that no remedy is warranted for the denial of a FAPE to [the student] from March 2018 to June 2019 is, accordingly, reversed and remanded

23

That there is a connection between an award of compensatory education and equitable considerations is not clear.

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to the IHO to supplement the record and determine an appropriate compensatory award, if applicable.

Application of a Student with a Disability, Appeal No. 21-091 at pp. 42-47, 4850 Dispute: Whether compensatory education was appropriate as a result of the student’s unlawful removal to a time out room.

Conclusion: The SRO concluded that compensatory education was appropriate as a result of the student’s unlawful removal to a time out room.

Basis of the SRO’s Decision: “Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” “The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE.” “Likewise, SRO’s have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.”

“Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA”.

In this case, the SRO concluded in relevant part that the student had been unlawfully removed to a time-out room and that this was a denial of a FAPE. As a remedy for this, the parent requested 57.8 hours of compensatory education, which was based on the student’s being removed to the time out room for 57.8 hours of time. The SRO pointed out that the district “failed to put in contrary evidence regarding an appropriate compensatory education award”. Only arguing that it provided the student with a FAPE for the years in question, the SRO concluded that the district” failed to address its burdens as required under the due process procedures set forth in New York State law”. The SRO concluded that “[g]iven the district’s failure to meet its burden of production or persuasion on the issue of compensatory education services, the calculations put forth by the parent are unrebutted”.

With respect to the issues relating to the time out room, the SRO awarded the student 57.8 hours of compensatory tutoring. Since the student’s “primary area of need is behavioral”, unless the parties agree otherwise, the SRO ordered that the “compensatory tutoring services awarded be provided by either a special education teacher or a [Board Certified Behavior Analyst]”.

Application of a Student with a Disability, Appeal No. 21-091 at pp. 38-42, 4850 Dispute: Whether compensatory education was appropriate as a result of the student’s unlawful placement in an intensive day treatment program, which was an interim alternative educational placement.

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Conclusion: The SRO concluded that compensatory education was appropriate as a result of the student’s unlawful placement in an intensive day treatment program.

Basis of the SRO’s Decision: “Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” “The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE.” “Likewise, SRO’s have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.”

“Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA”.

In this case, the SRO concluded in relevant part that the district assigned the third-grade student to an intensive day treatment program (IDT), which was an interim alternative educational setting (IAES), without first being ordered to by an IHO and further, without a subsequent manifestation determination review. The SRO also concluded that this was a denial of a FAPE. As a remedy for this, the parent requested 37 days of compensatory education, which was based on the student’s being placed in the IDT for 37 days. The SRO pointed out that the district “failed to put in contrary evidence regarding an appropriate compensatory education award;” only arguing that it had provided the student with a FAPE for the years in question. The SRO concluded that the district “failed to address its burdens as required under the due process procedures set forth in New York State Law”. The SRO further concluded that “[g]iven the district’s failure to meet its burden of production or persuasion on the issue of compensatory education services, the calculations put forth by the parent are unrebutted”.

With respect to the issue relating to the assignment of the student to the IDT, the SRO awarded the student “an equitable award” of 37 hours of compensatory education, which was an hour of compensatory education for each day of unlawful placement. The SRO pointed out here that although the student was assigned to the IDT for 37 days, while at that program, the student “worked at goals, received behavioral and therapeutic interventions, and made progress”. As support for this award, the SRO cited to out of circuit cases for the propositions that “compensatory education should be denied when the deficiencies suffered have already been mitigated” and that “an award of compensatory education is not mandatory in cases where a denial of FAPE is established”. Since the student’s “primary area of need is behavioral” unless the parties agree otherwise, the SRO ordered that the “compensatory tutoring services awarded be provided by either a special education teacher or a [Board Certified Behavior Analyst]”.

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O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) Dispute: Whether the ALJ properly calculated the number of hours of compensatory education due the student whether she set forth an appropriate period of time for the student to use those hours.

Conclusion: The Court found that the ALJ did not properly calculate the number of hours of compensatory education due the student and adjusted those hours upwards. The Court also found that it was equitable for the student to be provided with additional time to use the awarded compensatory education.

Basis of the Court’s Decision: “The decision whether to award compensatory educational services is an equitable one, and it requires an exercise of fact-specific discretion.” Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005).

Among other things, the ALJ awarded the student 82 hours of compensatory one on one instruction.

The Court agreed with the ALJ’s position that the student should be provided with an hour of one-to-one compensatory education for each day the student was denied a FAPE. With regard to this, the Court said that the record showed that the student “learns best in a one-to-one setting and is most engaged with a high degree of adult attention in awarding one on one compensatory education, because that form of education is most likely to catch [the student] up to where he should have been”. However, regarding the actual number of one-to-one hours of compensatory education to be awarded, the Court concluded that, and taking into account the days that the student did not attend school, the student did not receive a FAPE for a total of 137 days. The Court therefore increased the hours of compensatory instruction from 82 to 137.

The student also argued that the ALJ should have provided more than “slightly more” than two years for the student to use the compensatory education awarded. In particular, the student requested a five-year extension of the deadline because of COVID closures. The Court agreed that an extension of time was equitable given that it had increased the number of hours of compensatory education awarded and that the original deadline to use those hours was now only a half year away, the latter due to the prolonged pendency of the litigation. However, it also said that the five-year extension requested by the student was not necessary but that it was equitable to provide the student three years from the date of its decision to access his award of compensatory education.

Doe v. E. Lyme Bd. of Educ., 962 F.3d 649 (2d Cir. 2020) Dispute: To what extent may limitations be placed on escrow agreements relating to compensatory funds in an escrow account.

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Conclusion: The Circuit Court held that the powers of escrow agreements relative to compensatory funds in escrow accounts can be appropriately limited.

Basis of the Second Circuit’s Decision: The formation and operation of an escrow account is an appropriate mechanism to structure an award of post-special education eligibility compensatory education to a student for the failure of a district to provide the student with the appropriate level of stay-put services. In this case, the district court ordered the district, among other things, to place $192,066.02 for compensatory education into an escrow account to be used on behalf of the student. The district court set certain limitations on the use of the escrow account including a time limit, the use of an escrow agent for determining payouts and a refund of unused funds to the school district. The parent argued that this structure was inequitable. The Circuit Court pointed out that the parent requested the structure and that the district court granted her proposal and also selected her proposed escrow agent. The Circuit Court further pointed out that the structure of the escrow agreement was similar to others and that the Circuit Court had specifically pointed to this type of structure as an example of what could be used.

The parent also argued that the award’s six-year time limit was unduly short compared to other circuit court caselaw and further objected to the requirement that she coordinate the student’s service providers. Here again, the Circuit Court pointed out that the time limit and the autonomy to select the student’s providers had been requested by the parent. With respect to other case law, the Circuit Court indicated that such was based on a summary order and therefore did not control the district court’s discretion. The parent also argued that the compensatory award should not overlap with the student’s final year of IDEA eligibility. The Court stated here that the district court would be used in addition to the student’s IEP and that the parent pointed to no evidence showing duplication of benefits.

The Circuit Court said, however, that two of the parent’s arguments regarding the escrow agreement had merit. In the first place, the escrow agreement allowed the escrow agent to have final decision-making authority and unilaterally reduce the student’s access to the award. The Circuit Court held that this violated the IDEA’s requirement that, upon obtaining final relief, the parent’s award may not be modified by either party absent a new hearing.

The escrow agreement also required that the parent pay for one-half of the administrative fee relative to the escrow account. Pointing to the fact that the IDEA seeks to ensure a “free” education, the Circuit Court said that the parent “should not be required to pay for a portion of the cost of managing a fund for educational services that the district should have provided and that making the parent “pay for the maintenance of a compensatory education account would make the student’s access to appropriate education dependent upon the parent’s ability to front its costs; which was improper.

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VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) Dispute: Can compensatory education be provided at the same time for which a student is receiving tuition reimbursement.

Conclusion: The Court reversed the SRO and concluded that compensatory education can be provided at the same time for which a student is receiving tuition reimbursement.

Basis of the Court’s Decision: In this case, an IHO determined that the district did not provide the student with a FAPE for the 2016-2017, 2017-2018 and 2018-19 school years. The IHO held that a private school was an appropriate placement for the student and ordered tuition reimbursement. Among other things, the IHO also ordered the district to provide the student with compensatory home-based ABA. The district appealed the IHO’s determination to the SRO. The SRO held that the IHO’s award of compensatory education consisting of home-based ABA services was inappropriate on the grounds that the student could not receive compensatory education for the same school year in which the student received tuition reimbursement for a unilateral placement. The SRO also concluded that awarding prospective services “has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with … periodically assessing the student’s needs”.

Initially, the Court pointed out that because the SRO based his decision on a matter of law, it need not defer to the SRO’s holding. With respect to the question at issue, the Court said that first, it rejected “the conclusion that compensatory education is foreclosed by an award of tuition reimbursement”. The Court said that the caselaw cited by the DOE and the SRO did not stand for the contrary proposition and considered specific circumstances different than the case at issue.

With respect to cited caselaw, the Court held that in light of applicable caselaw from the Second Circuit, the Third Circuit caselaw relied upon by the SRO was neither persuasive nor binding.

Relative to this, and citing to Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440, 445 (2d Cir. 2015) the Court pointed out that the Second Circuit had “specifically held that an award of both compensatory education and tuition reimbursement for a single school year can be appropriate under certain circumstances and that such circumstances were not dissimilar to those here. On this basis, the Court found that “the SRO improperly concluded that awarding both tuition reimbursement and compensatory education for one school year is inappropriate.

Second, the Court found “that the SRO mischaracterized the IHO’s award of home-based ABA services as a prospective remedy that circumvents the statutory process requiring a CSE to periodically review a student’s needs”. To the contrary, the Court pointed out that “[t]he IHO awarded home-based ABA as compensatory education due to the denial of a FAPE for the student for the 2019-20 school year and that compensatory education is a retrospective and in-kind remedy for the failure to provide an appropriate education for a period of time”. With respect to the district’s similar argument that the IHO’s award of home-based ABA is prospective and that the parent’s appropriate remedy is to file a due process complaint, the Court pointed out that such is exactly what the parent did. Finally, the district argued that since tuition reimbursement 155

had already been awarded the student for the 2019-2020 school year “therefore no additional services, including home-based ABA [were] necessary to provide the student with a FAPE”.

Regarding additional services, the Court pointed out that “the IDEA defines a FAPE as inclusive of special education and related services… and the term related services includes services that may be required to assist a child with a disability to benefit from special education”. This being the case, the court concluded that “both educational placement and additional services may be necessary to provide a particular student with a FAPE and the award of tuition reimbursement in this case [did] not necessarily mean that additional services, such as home-based ABA [were] inappropriate”.

The Court previously pointed out that in circumstances where it “appropriately concludes that the SRO’s determinations are insufficiently reasoned to merit [] deference, and in particular, where the SRO rejects a more thorough and carefully considered decision of an IHO, the Court may defer to the IHO’s analysis”. With respect to this, the Court said that in this case it was deferring “to the IHO’s reasoned judgment based on facts in the hearing record”.

Z.Q. v. New York City Bd. of Educ., No. 1:20-CV-9866-ALC, 2022 WL 903003 (S.D.N.Y. Mar. 28, 2022) Dispute: In a case involving plaintiffs’ and putative class members’ request for compensatory relief following COVID-19, did the plaintiffs exhaust their administrative remedies.

Conclusion: The Court held that the plaintiffs did not exhaust their administrative remedies, and therefore did not have subject matter jurisdiction over the action and that it must be dismissed.

Basis of the Court’s Decision: “This action is about the delay in the provision of compensatory education services for students with disabilities in New York City following the COVID-19 outbreak.”

In a June 20, 2020, guidance document relating to CIVID-19, the State advised, among other things, that “CSE’s would need to consider newly identified needs when determining the appropriate special programs and services to be recommended for the 2020-2021 school year, and that recommendations for children with disabilities may include a range of remedies including compensatory services”. The State issued additional COVID-19 related guidance on June 2021, which. among other things “remind[ed] CSE’s of their responsibility to make an individualized determination as to whether and to what extent compensatory services may be needed for a student with a disability to make up for any skills that may have been lost when FAPE could not be provided.”

Here, the plaintiffs commenced a putative class action alleging that the State and City “failed to meet their legal obligations to implement students’ IEPs during periods of remote learning”. In particular, they allege that the State and City “have failed to provide services and programs that are consistent with students’ IEPs, especially during periods of remote learning”. They also allege that the State and City “have failed to provide technology, translation, and interpretation services to families of students in need of remote learning resources”. They further allege that “[w]hen 156

in-person opportunities resumed, the [State and City] failed to provide the in-person component of students’ IEPs”.

The plaintiffs “seek the creation and implementation of a specific process and plan to remedy the denials of plaintiffs’ and Class members’ rights, which will promptly afford these students the education to which they are legally entitled – before they fall any further behind”. They seek a plan that “would be an expedited alternative to seeking compensatory services through the current impartial hearing process”.

The Court said that in this case, the plaintiffs do not allege that they have exhausted their administrative remedies. None have “filed an administrative due process complaint, requested an impartial hearing, or sought any of the relief provided for in the COVID-10 guidance document from [the State] regarding compensatory services”. The plaintiffs set forth instead that exhaustion is not required because “(1) they allege systemic violations about [the City’s and State’s] implementation of IEPs during the pandemic, and (2) the current hearing system cannot adequately address these systemic failures”.

Citing to the Second Circuit Court, the District Court explained that “there are three exceptions to the IDEA exhaustion requirement: (1) it would be futile to resort to the IDEA’s due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to law; or (3) it is improbable that adequate relief can be obtained by pursing administrative remedies”. The Court pointed out that in this case, the plaintiffs “fail to demonstrate futility, fail to identify any specific policy or practice of general applicability that violates the law, and fail to make a showing that it would be improbable to seek adequate relief through the administrative process”.

Regarding futility, the District Court again cited to the Second Circuit Court for the proposition that “[t]he common element among cases where administrative remedies would be futile involve allegations that the framework and procedures for assessing and placing students in appropriate educational programs were at issue or because the nature and volume of complaints were incapable of correction by the administrative hearing process”. “Neither situation applies here” the Court said.

The Court also found that “[t]he [a]dministrative [p]rocess [ex]pressly [p]rovides the [r]elief [s]ought.” In the first place, the Court pointed out that the complaint specifically admitted “that state and local administrative authorities can remedy the alleged injuries, specifically regarding the provision of compensatory services”. And, the Court said “speed[ing] up the process” makes no difference. The Court said that “[c]ompensatory services are well within the purview of the impartial hearing system and constitute an available remedy under the IDEA” and that “each student’s IEP would be implicated in determining whether, and to what extent, to furnish an award”. This case, the Court said “reflects a plaintiff-specific dispute over the quality or methodology of services, which is routinely and properly resolved through the administrative process” and in fact, which the Court said is “better dealt with through the administrative 157

process”. Moreover, the Court said, “[i]f the plaintiffs exhausted the administrative process, each student would reap the benefits of agency expertise, from CSEs and hearing officers alike, in developing reasonably calculated compensatory services fit for the individual student”; something the Court said was an “important purpose of the exhaustion requirement”.

P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop.

Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022) Dispute: Whether the SRO’s compensatory education awards merited deference and should be upheld.

Conclusion: The Court concluded that the SRO’s determination of the amount and type of compensatory education merited deference and should be upheld.

Basis of the Court’s Decision: In a decision dated October 6, 2016, the SRO reduced the IHO’s awards of the amount and type compensatory education and, in a decision dated December 29, 2017, agreed with the IHO’s decision to limit the compensatory education award to only a part of the 2016-17 school year. In each case, the Court concluded that the parents “failed to meet their burden” of demonstrating that the SRO’s decisions did not “merit deference”. The Court pointed out that the parents failed to identify specifically why they believed that the SROs decisions were “erroneous:” and that their argument was limited to simply asserting that the SRO did not grant what the parents requested. Upon review, the Court found the SRO’s decisions to be “thorough and careful” and advised that it “would defer” to the SRO’s findings.

The SRO’s October 6, 2016, decision reduced the IHO’s award of 100 hours of compensatory special education and 50 hours of ABA services to 39 hours of compensatory special education.

With respect to this, the Court found that the SRO “applied the correct legal standard” in determining the amount of compensatory education to provide which was “to place the student in the position that he or she would have been in had the district complied with its obligations under the IDEA”. The Court concluded that in determining that 39 hours of compensatory special education was appropriate to do this, the SRO “went through a detailed examination of [the student’s] history and success (or lack thereof) with home instruction, identifying the specific periods in which [the student] did not receive any academic instruction and the methods of instruction with which [the student] had made the most progress in managing his behaviors”.

The Court concluded that “it was with these considerations in mind” that the SRO “determined that one hour of special education services for each school day from February 10, 2016 through April 12, 2016”, which was the period of time in which the student “either did not receive any academic instruction or received inadequate academic instruction”, “was sufficient to place [the student] in the position that he would have been in had he been provided with a FAPE”. With respect to the balance of the school year, the Court pointed out that during this period the student was making “some progress”.

Regarding the reasons why the SRO rejected the IHO’s decision to award 50 hours of ABA services, the Court looked to the SRO’s finding that the parents’ evidence failed to “articulate 158

why [the student] required instruction using ABA or provide support for [the parents’] claim that ABA services were necessary to provide [the student] with educational benefit”. That being the case, the SRO again concluded that “given that an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA, the hearing record [did] not support an equitable remedy in the form of ABA services”. The Court found that “the SRO’s educational judgments [sic] in taking account of [the student’s] overall education setting, needs, and services rather than rotely prescribing services from which the student would achieve no meaningful benefit [was] entitled to deference”.

The SRO’s December 29, 2017, decision rejected the parents’ argument that the student “was entitled to compensatory education” to cover the entire 2016-17 school year”. Here again, the Court concluded that the SRO “identified and applied the correct legal standard” and “again, engaged in a thoughtful and thorough review of the hearing record to arrive at her decision”. In this case, the SRO upheld the IHO’s conclusion to end the student’s compensatory education award on January 27, 2017 as subsequent to this date, the parents had removed the student from school. The Court found that “here again” the SRO’s “educational judgments to be worthy of deference”.

Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Whether the IHO determined the appropriate amount of compensatory education.

Conclusion: The SRO determined that the IHO correctly determined the amount of compensatory education due the student.

Basis of the SRO’s Decision: The IHO determined that the denial of FAPE as a result of the CSE’s failure to classify the student with an emotional disturbance and a specific learning disability required that the student be provided with 540 hours of academic remediation. The IHO also allowed the district a credit or offset toward the 540 hours to the extent that the district provided the student with services subsequent to the IHO’s interim decision. Upon appeal, the district asserted, without further explanation, that the IHO did not take into account the amount of instruction that it had provided to the student. The SRO reviewed the IHO’s determination regarding the amount of compensatory education that should be provided to the student and found that there was no evidence in the hearing record to change the IHO’s determination.

Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent requests 250 hours of compensatory education. The district opposes the request.

Conclusion: The SRO upheld the hearing officer’s conclusion that the student should receive 250 hours of compensatory education.

Basis of the SRO’s Decision: The SRO granted the student’s request for 250 hours of compensatory education in a 1:1 setting using a multisensory Orton Gillingham approach starting 159

in February 2019 and running for a period of 25 weeks. In response to the district’s assertion that the compensatory education being provided was an Orton Gillingham program of instruction and not the ABA program recommended by the student’s neuropsychologist, the SRO explained that “the district did not offer any information to refute the parent’s evidence that the 1:1 multisensory instruction was appropriate to meet [the student’s] needs” and also that the student “demonstrated progress using that method”. Regarding the ABA instruction recommended by the neuropsychologist, the SRO wrote that that recommended instruction also “incorporated the need for the student to receive 1:1 instruction”. With this in mind, the SRO concluded that “the evidence in the hearing record does not provide a basis to depart from the IHO’s award of 250 hours of compensatory tutoring using multisensory methods to remedy the denial of a FAPE”.

CONSENT

There is no update at this time, check back for later versions for any update.

COVID-19 COMPENSATORY EDUCATION Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) Issue: COVID-19 and deference Dispute: Whether the SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction or were outside the SRO’s scope of administrative review.

Conclusion: The SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction.

Key Take Away: In an important victory for parents, the United States District Court for the Southern District of New York held that although the Covid-19 Pandemic resulted in the closing of schools to all students and the initiation of remote instruction to all (“systemic considerations”), a student’s individual rights to be provided with a FAPE during COVID-19 under the IDEA could not be ignored but must be reviewed by the SRO in circumstances where the question at issue involved individual relief that the SRO was capable of providing.

Reasoning: 160

The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020, through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended a week on line and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) provided for a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year, placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and with extended school year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020 the parent filed a due process complaint notice. The complaint asserted that (1) the district had “unilaterally, substantially, and materially” changed the student’s “status quo” program from a school classroom to her home and (2) the district “had failed to provide a FAPE since mid-March 2020. As relief, among other things, the parent requested “an extensive independent evaluation of [the student] to determine the need for compensatory services and a new [CSE] meeting to review the same”, “a determination of appropriate compensatory services [for the student] due to the denial of FAPE”, and “an interim order requiring [the student’s] school district to immediately implement [the student’s] IEP by reopening her school”.

On August 31, 2021, the IHO found that the student was entitled to an independent educational evaluation (IEE). On December 2, 2021, [the IHO] dismissed [the parent’s] complaint in part holding that her request for an order reopening [the student’s] school was moot in light of [the school’s] return to full-time in-person instruction”. “On February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year and (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] took issue with the State’s executive decision 161

to close schools or the [district’s] decision to deliver instruction remotely”, “the state administrative process lacked jurisdiction over the complaint” as the decisions being challenged were “systemic in nature” as the COVID-19 related claims were relevant to other students and thus were “outside the scope of administrative review under the IDEA, which focuses on how to define and treat individual students’ learning disabilities.”.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. With respect to the SRO’s finding that the parent’s claim regarding the State’s executive decision to close school or the district’s decision to deliver instruction remotely “were outside of the scope of administrative relief and that therefore the SRO lacked jurisdiction to consider them, because they were “systemic in nature”, the Court disagreed. The Court started out with the proposition that the SRO’s decision in relevant part “implicates a question of law” and therefore the Court owes no “deference” to such decision. The Court concluded that “[e]xercising de novo review, … the SRO’s conclusion – that local authorities were categorically barred from assessing [the parent’s] due process complaint that her daughter had been denied a FAPE because the claim implicated systemic considerations – [were] inconsistent with the IDEA’s text and the caselaw applying it”. Regarding the “systemic violation exception to administrative exhaustion” the Court pointed out that this was “addressed to a different context: one in which collective challenges are brought and collective relief is sought”. But, the Court said, this “does not mean that state administrative tribunals are barred –or may abstain -- from hearing claims by an individual parent of a FAPE denial that implicates broader policies”. The Court further pointed out that the “individualized claim does not seek relief that an SRO is incapable of providing”. Rather here, the court also pointed out that “[the parent] seeks a finding that [the student] was denied a FAPE and as a remedy an extensive independent evaluation of [the student] to determine the need for compensatory services, and a remedial order requiring [the district] to provide [the student] with such services”. The Court stated that the parent’s “bid for individualized relief for her daughter thus is well within the heartland of IDEA claims”.

In its decision, the Court pointed out that “[i] sum, by refusing to adjudicate this case on the false premise that [the SRO] lacked power to hear it, the SRO here failed to discharge her fundamental obligation under the IDEA: to decide on substantive grounds whether [the student] received a free appropriate public education”. The Court continued that it “reject[ed] the SRO’s rational that claims of FAPE denials that implicate systematic considerations, like the delivery of remote instruction and services to students with disabilities during the pandemic are categorically beyond the jurisdiction of the IDEA’s impartial hearing process to individually remedy”. The Court said that “[p]rovided that the remedy sought is one that an SRO has the power to award and that the parent has otherwise complied with the IDEA’s dictates, the SRO is obliged to address such claims”.

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Z.Q. et al. individually and on behalf of themselves and all other similarly situated v. New York City Dep’t of Educ., No. 22-939-cv, 2023 WL 1486387 (2d Cir. Feb. 3, 2023) Dispute: Whether the plaintiffs have exhausted their administrative remedies with respect to their claim that appropriate compensatory services should be provided to address the education of students with disabilities during the period of remote learning caused by the COVID-19 pandemic.

Conclusion: The Second Circuit determined that in light of the “sparse record” before it, it was inappropriate in relevant part to grant the defendants’ motion to dismiss on the basis of exhaustion of administrative remedies and reversed the district court’s decision to do so; and remanded the matter to that court for further proceedings.

Basis of the Second Circuit’s Decision: A group of parents commenced a class action lawsuit alleging that the New York City and New York State failed to provide a FAPE to thousands of students with disabilities in New York City during the period of remote learning caused by the COVID-19 pandemic. The parents requested that the district court put in place a specific mechanism which was separate and distinct from the administrative hearings procedure to evaluate the need for compensatory services for special education students who, because of remote learning, fell behind during the COVID-19 pandemic.

The district court “dismissed the plaintiffs’ federal claims for failure to exhaust available administrative remedies because they did not seek compensatory services through [the New York City Department of Education’s] complaint resolution process before filing [the] action”.

The parents argued “that it would have been futile” to exhaust their administrative remedies and that therefore they should be excused for not doing so.

The Appeals Court pointed out that “IDEA’s exhaustion requirement will be excused in those circumstances where exhaustion would be futile”. To “demonstrate futility”, the Appeals Court said that a plaintiff “must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process”. The Appeals Court went on to say that, among other things, futility “may arise where the complaint alleges systemic violations that the administrative review process had no power to correct.”

With respect “to the extent” that the plaintiffs were arguing that “exhaustion would be futile merely because the administrative process cannot order the process-oriented remedy that [the plaintiffs] seek, …” the Appeals Court said this was “unpersuasive”.

The district court concluded that plaintiffs did not allege any systemic violation and dismissed the claims. The Appeals Court disagreed saying that it has “recognized that exhaustion may be futile if administrative bodies persistently fail to render expeditious decisions as to due process complaints within the required timeframe”. It said that the complaint here in relevant part “sets 163

forth precisely this allegation of systemic delay”. It pointed out that the plaintiffs asserted that the New York City Department of Education “systemically fails to resolve due process complaints within the required [75-day] time frame and cannot adequately handle the volume of plaintiffs’ complaints”. The Appeals Court pointed out that the plaintiffs had also “allege[d] that at the start of the COVID-19 pandemic, the [New York City Department of Education] faced more than 10,000 open complaints, nearly 70% of which had blown past the legal deadline for resolution, forcing families to wait months or even years before receiving the special education services they need”.

Defendants “argue[d] that exhaustion was not futile because the New York City Department of Education had put into place an individualized and IEP-based “new program for provision of compensatory education” which “offers the exact relief that plaintiffs seek and allows families to obtain compensatory services outside of the administrative hearing process”. The defendants argue that “plaintiffs’ claims are moot because the [New York City Department of Education’s] program offers plaintiffs the relief they seek”.

Upon review of the papers, the Appeals Court said that the plaintiffs raised numerous facts relevant to the ability of the “new program” to achieve the plaintiff’s relief as well as to address the large-scale delay in the provision of compensatory services.

The Appeals Court determined that on the “sparse record” before it, and in the context of a motion to dismiss, it could not “conclude that New York City’s 2022-23 new program moots plaintiff’s claims or undermines the sufficiency of their futility allegations.

The Appeals Court concluded that the defendants could raise their arguments in the district court “with further development of the record” and that the plaintiffs could amend their complaint, if necessary, to address the defendants’ allegations that the “new program” is effective in addressing the need for compensatory services as a rejlt of the remote services resulting from the COVID-19 pandemic.

The Court vacated the judgement of the district court and remanded the matter to it.

Eaton Community City Sch, Ohio State Educational Agency, Apr. 30, 2021 (121 LRP 20304) Dispute: In light of COVID-19 did the district provide the student with a timely functional behavioral assessment and a timely behavioral intervention plan?

Conclusion: The state educational agency determined that the district did not provide the student with a timely functional behavioral assessment and a timely behavioral intervention plan.

Basis of the State Educational Agency’s Decision: Federal regulation at 34 C.F.R. 300.530(f)(1) provides that in circumstances where the local educational agency, the parent, and relevant members of the IEP Team make a determination that relevant student conduct is a manifestation of the child’s disability, the IEP Team must either (i) conduct a functional behavioral assessment, unless the district had conducted a functional behavioral assessment before the relevant date 164

and implement a behavioral intervention plan for the child or (ii) if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it as necessary, to address the behavior.

In this case, the parent requested an initial special education evaluation on February 25, 2020.

The student was involved in a “disciplinary incident” on March 4, 2020. A manifestation review meeting was held in March 2020. As a result of this meeting, it was found that “the behavior leading to the disciplinary removal [was] a manifestation of the student’s disability”. At the time of the meeting the student had neither a functional behavioral assessment (FBA) nor a behavioral intervention plan (BIP). “The initial consent for evaluation was signed by the parent on March 9, 2020 with a due date for completion by May 8, 2020. “The [IEP Team] began the process of conducting an evaluation, including areas of behavior, in March of 2020…”. However, because of the COVID-19 pandemic, by order of the Governor the district’s schools were closed by March 16, 2020. The “student began receiving services remotely on March 16, 2020 with his peers.”

According to the state educational agency, “[f]ederal and state directives indicate that if classroom observation or face to face testing are required, evaluations should be delayed until schools reopen to allow for these required evaluation components”. On April 20, 2020, by prior written notice, the district proposed to extend the timeline for the initial evaluation “as quickly as possible once schools are reopened by the State”. “Students were permitted to receive services in-person and in-buildings daily at the start of the 2020-2021 school year.” Parental consent for an FBA “was obtained on October 1, 2020”. The student’s evaluation, including two classroom observations was completed in November 2020. The [s]tudent was determined eligible as a student with a disability on November 16, 2020. “The [d]istrict provided a copy of an FBA, with a meeting date of December 10, 2020. The student’s initial IEP was completed on December 15, 2020. “[O]ther than what was contained within the safety plan or the IEP”, the district did not submit a BIP to the state educational agency for review.

The state educational agency found that the district was in violation of 34 CFR 300.530[f][1]. In this regard, as indicated above, it concluded that “[t]he district did not obtain consent for the FBA until October of 2020 and the FBA was not completed until December of 2020. With respect to the BIP, the state educational agency pointed out that, as indicated above, the district “did not create a BIP but instead incorporated goals from the FBA in the student’s initial IEP.” The state educational agency concluded that “[w]hile the pandemic made the ability to conduct an FBA more difficult, the [d]istrict returned to in-person learning at the start of the 2020-2021 school year’. This being the case, the state educational agency concluded that “[t]he FBA should have been completed as soon as in-person learning resumed and a BIP should have been put into place prior to the December 2020 IEP. As a remedy, the state environmental agency agreed with the district that the student should receive 10 hours of compensatory education, that district staff should receive training, and that a BIP should be provided to the student.

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In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) Dispute: Did the district provide the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE) during the COVID-19 pandemic?

Conclusion: The state educational agency determined that the district did not provide the student with a FAPE in the LRE during the COVID-19 pandemic.

Basis of the State Educational Agency’s Decision: On March 15, 2020, the Governor of Maine proclaimed a state of civil emergency to protect public health in the face of the COVID-19 pandemic. Immediately thereafter, most schools in the state, including the student’s, suspended in-person instruction. On March 31, the Governor issued a “stay at home order” prohibiting K12 schools from providing in-person classroom instruction through May 1, 2020. On April 7, the Maine Commissioner of Education recommended that districts extend their remote learning plans through the end of the 2019-2020 school year.

The student was diagnosed with an autism spectrum disorder with accompanying language impairment. Autism rating scales show the student fell within the “moderate to severe” range of concern.

At the time of the March 15, 2020, Governor’s proclamation, the student’s IEP provided that the student receive 3 X 30 minutes per week of speech and language services, 5 X 3 hours per week of behavioral health day treatment, assistive technology, and transportation, 2 X 45 minutes per week of occupational therapy (OT) services, and 1 X 30 minutes per month of OT consultation.

At the time of the Governor’s March 15 announcement, the student attended a program within a district school.

“The student received no services between March 15, 2020 and April 15, 2020.” On or around April 14, the student began speech and language teletherapy. During this time, the student did not receive any OT services and no specially designed instruction. On or around May 11, the district began offering the student “live,” “remote,” “telehealth” instruction which was composed of 30 minutes per day of “group circle time” with an estimated 20 other children.

During “circle time” there was no individualized instruction, nor any specially designed instruction towards IEP goals. “At some point in May 2020, the student received some OT teletherapy services” which the OT therapist explained were “largely ineffective due to the student’s difficulty maintaining attention on a screen for any length of time.” As a consequence, the therapist spent most of the time coaching the parent to provide “support and guidance”. The district began to provide the student with in-person OT services in July of 2020. By agreement on June 18, 2020, the student’s IEP was amended to include extended school year services.

As of October 2020, the student had not received any specially designed instruction since March of 2020 and had not been receiving district speech therapy since the COVID shutdown in March 2020. Regarding this, the student had “tried to access some [specially designed instruction] remotely during the March -- June shutdown but had difficulty participating” in that in the 166

context of remote learning. Nor did the district enter into any “specific discussion” with the parents about what remote specially designed instruction might look like. And other than the large group zoom meetings, the student was never offered remote specially designed instruction.

With respect to the least restrictive environment (LRE), the parent requested that the student be provided with instruction with a staff to student ratio of less than 1:1. The student’s occupational therapist also provided information to the district that the student’s progress in reaching goals indicated a readiness for a lesser level of support. Further, a review of the level of services provided to the student before the school closure indicated that the program being provided to the student was not exclusively at a 1:1 ratio but sometimes was less than that. However, the distinct felt that a remote services environment was not conducive to an evaluation of an appropriate staff to student ratio for the student and that such decision should await the student’s return to in-person programming. The student and the district continued to discuss issues relating to the student’s LRE from October 29, 2020 to December 1, 2020. On occasions the parents and the district discussed the possibility that the student would return to in-person district programs. At each such occasion the parents were advised that all programs were filled and maintained waiting lists. The reopening date of the program that the student had attended before the pandemic was pushed back a number of occasions. In September 2020, the parents were informed that there was no longer space for the student in that program.

The parents filed a complaint on December 14, 2020. At the time of the complaint the student had not been placed into a program and was not receiving specially designed instruction in any form. The student was receiving home-based occupational therapy services and speech and language services.

According to the state educational agency, OSEP guidance relating to the COVID-19 pandemic, provided that once a district begins to provide educational services to the general student population, the district “must make every effort to provide special education and related services in accordance with each student’s IEP and in a manner that ensures a free appropriate public education for all eligible students”. At the same time, the state educational agency advised that the United States Department of Education’s Office of Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) have stated that “ensuring compliance with the IDEA should not prevent any school from offering educational programs through distance instruction” and that “it is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented natural emergency”. Further, the state educational agency cited to OSEP guidance that in such times, it is “not required to provide the exact service hours of the IEP but should develop plans that are appropriately designed to support student learning in an alternative context”. Cited OSEP guidance also provided “that in situations where special education is unavoidably delayed due to alternative instructional models during the COVID-19 pandemic or where specialized services cannot be adequately delivered in an alternative method, once schools resume normal 167

operations, IEP teams must make an individualized determination as to whether compensatory services may be required”.

Consistent with this, the state educational agency pointed out that once the district began providing remote services to students it was required to provide a FAPE to the student. The state educational agency concluded that the “limited remote services” provided to the student “did not satisfy the requirements of the student’s IEP” and that “therefore [the district] was required to reconvene an IEP Team meeting because the student’s services dramatically changed the substance of special education instruction [to the student] outside of the IEP process”. Regarding “circle time,” the state educational agency pointed out “that this was not specially designed to meet IEP goals or needs” and that “the services provided were simply inaccessible to the [s]tudent”. Due to age, maturity, and to disabilities, the [s]tudent could not engage in a large group setting with more than 20 peers and an unfamiliar teacher on a computer screen”.

The state educational agency concluded that because the IEP was not able to be implemented, the district had “a responsibility to reconvene the IEP Team and identify alternative service options” to “meet the student’s needs during the COVID-10 pandemic” and that [the IEP] team could have considered other options, such as remote 1:1 specially designed instruction, specially designed instructional packets prepared specifically for the [s]tudent, or remote coaching services provided to the parents”. In this case “the IEP team meeting was never held and none of these options were considered”.

The state educational agency also concluded that since “no IEP meeting was held despite a fundamental change in the student’s services there was no opportunity for parent input or objection”.

The state educational agency also found that the district did not provide the student with a FAPE because the district failed to implement the student’s IEP in a “material” way. In this regard, the student was never provided FAPE during the “the end of the 2019-20 school year because “the [s]tudent was never offered specially designed instruction or given a generalized form of remote instruction that was accessible to [him]”. Rather, the remote instruction provided “did not address the student’s IEP goals and did not provide opportunities for the student to progress in light of [the student’s] unique circumstances”. Further, the state educational agency pointed out that the student was without any services during 2020’s extended school year notwithstanding the student’s eligibility for such services.

The State educational agency also found that the district was not educating the student in the LRE. It found that, notwithstanding the failure of the district to provide the student with a FAPE for nearly a full year, the student had “changed and developed immensely” “as a result of engagement with related service providers and as a result of developmental transition” “Additionally other members of the IEP Team including the parent, case manager and former teacher all submitted perspectives indicating that the student’s LRE likely required reexamination.” The state educational agency found that the fact that the district was “not 168

currently providing the student with an educational environment while simultaneously insisting that the [s]tudent needed to be engaged in an in-school educational environment before LRE could be discussed and reconsidered by the IEP Team” was an transition “untenable position” The state educational agency was clear that “the IEP Team must be permitted to collect data, perhaps through a re-evaluation, and consider the question of whether the student’s IEP reflects … the least restrictive environment”.

The state educational agency required that the district engage in a “corrective action plan”. This plan included the reconvening of the student’s IEP Team “to determine a plan for delivering specially designed instruction while the student remains on the wait list for various special purpose private schools”. The plan for specially designed instruction was to be “in keeping with the [s]tudent’s current needs and must consider all options for the possible delivery of services including, but not limited to, receiving 1:1 instruction at a non-educational remote site” such as district offices, “receiving 1:1 synchronous remote instruction, and receiving 1:1 asynchronous remote instruction”. The IEP Team was required “to consider the [s]tudent’s learning needs” when adopting its plan and that if, during this time, the IEP Team anticipated “further delay” it would be required to determine “what additional compensatory services” were owed to the student.

Regarding the LRE, the state educational agency was to “engage in a meaningful discussion about the [s]tudent’s least restrictive environment and, if the parents consent, take steps to re-evaluate the student.

The state educational agency determined that in this case an award of compensatory education was appropriate. This included 270 hours of compensatory specially designed instruction, an additional 10 hours of compensatory occupational therapy and an additional 10 hours of compensatory speech and language services.

New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID-19related school closure in the provision of special education and related services.

Conclusion: The administrative agency determined that the district did not.

Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format.

First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no 169

indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year.

In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 Dispute: Whether the district during the 2019-20 school year properly implemented the individualized education program of a student with a disability Conclusion: The State agency held that the district failed to implement the student’s IEP and that the district should conduct an IEP meeting to determine the extent of additional services required as a result of this failure Basis of the Agency’s Decision: On March 12, 2020, the district’s IEP team met to determine the student’s IEP and placement. Among other things, the IEP team determined that the student should receive homebound services, would meet with teachers once a week to go over weekly assignments, and that tests would be read out loud when the purpose of the test is not to assess the student’s reading ability. The student’s IEP was to be implemented on March 13, 2020. As a result of the COVID-19 health emergency, on March 18, 2020 the district began providing all students “distance learning via virtual instruction”. Relying on federal guidance, the state agency 170

advised that “[s]chool districts must provide equal access to educational opportunities to students with disabilities if those opportunities are provided to the general student population during that time, including the provision of a [FAPE]. When a school has been closed according to a statewide order each student with a disability must be offered the special education and related services identified in the student’s IEP to the greatest extent possible”. 24 During the period March 18, 2020 to the end of the school year the district provided the student with general education instruction and specially designed instruction in accordance with his IEP until the end of the 2019-20 school year. However, the district did not arrange for the student to meet virtually with a teacher each week to discuss assignments as provided for in the IEP. Nor did the district have the student’s tests read aloud as set forth in the IEP. The state agency held that the district should have “arranged to implement the student’s IEP to the greatest extent possible” and that to do both was reasonable.

The state agency advised the district that it “must conduct an IEP meeting with the parents to determine the extent of the additional services required for the failure to implement the student’s IEP”.

In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) Dispute: Was the district required to provide compensatory education services when the student’s IEP was not fully implemented because of the COVID-19 pandemic?

Conclusion: The district was required to provide compensatory education services when the student’s IEP was not fully implemented because of the COVID-19 pandemic.

Basis of the state agency’s decision: In response to the COVID-19 pandemic, the governor of Indiana issued executive orders on March 19, and April 2, 2020 closing all public schools in the state and requiring them to provide instruction via remote learning for the rest of the 2019-20 school year. By letter dated April 13, 2020, the Metropolitan School District of Pike Township (the district) notified parents that students with IEPs would have their plans implemented “to the best of the (IEP Team’s) ability” and that “how” the plans would be implemented “would be proportionate to the remote learning schedule and setting”. Prior to the pandemic, in accordance with the student’s IEP, the student’s program had included seven classes during the day. These classes included “small group intensive reading and writing instruction in an English language arts lab classroom once a day for 45 minutes,” “small group math instruction in a math lab classroom once a day for 45 minutes”, “and “classroom assignment and homework assistance in a resource classroom once a day for 45 minutes”.

The decision after complaint cited to Department of Education fact sheets dated March and March 21. See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, United States Department of Education, (March 2020); Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools while Serving Children with Disabilities, United States Department of Education (March 21, 2020).

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During the district’s remote learning days and after the district’s April 13, 2020 letter, live virtual instruction “was not routinely conducted’. Additionally, the student did not receive small group instructional services including “classroom assignment and homework assistance” once a day for 45 minutes from a resource room teacher. Further, the student did not receive his IEP-required “small group intensive reading and writing instruction in the English language arts lab classroom’, or his ‘small group math instruction in the math lab classroom’.

The state administrative agency found that the district “did not implement the student’s IEP as written, nor did it convene the student’s (IEP Team meeting) to review or revise the student’s IEP”. Consequently, the state administrative agency concluded that the district’s IEP Team would need to consider whether the student should be provided with compensatory education services.

In making this decision, the district was required to consider the “actual amount of service hours missed and the level of specialized instruction that would have been provided”, “the student’s capacity to receive education hours, considering the age of the student, the severity of the disability, the cognitive and/or attentional ability, the physical/mental stamina to receive additional instruction outside of the school day, and other mitigating factors”, and the extent to which there had been “a negative impact on the student’s progress.

IMPLEMENTATION OF IEP Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) Issue: COVID-19 and deference Dispute: Whether the SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction or were outside the SRO’s scope of administrative review.

Conclusion: The SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction.

Key Take Away: In an important victory for parents, the United States District Court for the Southern District of New York held that although the Covid-19 Pandemic resulted in the closing of schools to all students and the initiation of remote instruction to all (“systemic considerations”), a student’s individual rights to be provided with a FAPE during COVID-19 under the IDEA could not be ignored but must be reviewed by the SRO in circumstances where the question at issue involved individual relief that the SRO was capable of providing.

Reasoning: 172

The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020, through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended a week on line and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) provided for a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year, placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and with extended school year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020, the parent filed a due process complaint notice. The complaint asserted that (1) the district had “unilaterally, substantially, and materially” changed the student’s “status quo” program from a school classroom to her home and (2) the district “had failed to provide a FAPE since mid-March 2020. As relief, among other things, the parent requested “an extensive independent evaluation of [the student] to determine the need for compensatory services and a new [CSE] meeting to review the same”, “a determination of appropriate compensatory services [for the student] due to the denial of FAPE”, and “an interim order requiring [the student’s] school district to immediately implement [the student’s] IEP by reopening her school”.

On August 31, 2021, the IHO found that the student was entitled to an independent educational evaluation (IEE). On December 2, 2021, [the IHO] dismissed [the parent’s] complaint in part holding that her request for an order reopening [the student’s] school was moot in light of [the school’s] return to full-time in-person instruction”. “On February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year and (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] took issue with the State’s executive decision 173

to close schools or the [district’s] decision to deliver instruction remotely”, “the state administrative process lacked jurisdiction over the complaint” as the decisions being challenged were “systemic in nature” as the COVID-19 related claims were relevant to other students and thus were “outside the scope of administrative review under the IDEA, which focuses on how to define and treat individual students’ learning disabilities.”.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. With respect to the SRO’s finding that the parent’s claim regarding the State’s executive decision to close school or the district’s decision to deliver instruction remotely “were outside of the scope of administrative relief and that therefore the SRO lacked jurisdiction to consider them, because they were “systemic in nature”, the Court disagreed. The Court started out with the proposition that the SRO’s decision in relevant part “implicates a question of law” and therefore the Court owes no “deference” to such decision. The Court concluded that “[e]xercising de novo review, … the SRO’s conclusion – that local authorities were categorically barred from assessing [the parent’s] due process complaint that her daughter had been denied a FAPE because the claim implicated systemic considerations – [were] inconsistent with the IDEA’s text and the caselaw applying it”. Regarding the “systemic violation exception to administrative exhaustion” the Court pointed out that this was “addressed to a different context: one in which collective challenges are brought and collective relief is sought”. But, the Court said, this “does not mean that state administrative tribunals are barred –or may abstain -- from hearing claims by an individual parent of a FAPE denial that implicates broader policies”. The Court further pointed out that the “individualized claim does not seek relief that an SRO is incapable of providing”. Rather here, the court also pointed out that “[the parent] seeks a finding that [the student] was denied a FAPE and as a remedy an extensive independent evaluation of [the student] to determine the need for compensatory services, and a remedial order requiring [the district] to provide [the student] with such services”. The Court stated that the parent’s “bid for individualized relief for her daughter thus is well within the heartland of IDEA claims”.

In its decision, the Court pointed out that “[i] sum, by refusing to adjudicate this case on the false premise that [the SRO] lacked power to hear it, the SRO here failed to discharge her fundamental obligation under the IDEA: to decide on substantive grounds whether [the student] received a free appropriate public education”. The Court continued that it “reject[ed] the SRO’s rational that claims of FAPE denials that implicate systematic considerations, like the delivery of remote instruction and services to students with disabilities during the pandemic are categorically beyond the jurisdiction of the IDEA’s impartial hearing process to individually remedy”. The Court said that “[p]rovided that the remedy sought is one that an SRO has the power to award and that the parent has otherwise complied with the IDEA’s dictates, the SRO is obliged to address such claims”.

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Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023) Dispute: Whether the IEP should have addressed how remote instruction would have been provided.

Conclusion: The SRO agreed with the IHO that the IEP should have addressed how remote instruction would have been provided.

Basis of the SRO’s Decision: In this case, it is “uncontested that the student needed a full time 1:1` paraprofessional due to health and safety concerns because the student frequently had seizures during the school day.”

The paraprofessional would also address the student’s “significant medical concerns”. Regarding this, “[t]he IEP indicated that the paraprofessional would monitor and document the student’s seizures.” and the paraprofessional would “provide the student with 1:1 health support” to address the student’s significant medical concerns.

At the same time, during the 2020-21 school year, the district’s testimony was that because of the Covid Pandemic “only remote instruction was being provided” and in fact the CSE meeting was also held remotely. Notwithstanding the fact that the student’s instruction would be remotely, the IHO pointed out that the student’s IEP “failed to address remote instruction”.

Based on this, the IHO held that the district failed to provide the student with a FAPE. Regarding the student’s need for full time 1:1 paraprofessional assistance, the SRO pointed out that “the principle testified, generally, that all our teachers and our classes that had students that needed a paraprofessional, they were able to assist the students remotely”. At the same time, the SRO indicated that the principal “did not provide a specific explanation as to how this service could have been provided for this student remotely during the 2020-21 school year. The SRO also said that the IEP for this student “should have included an explanation as to how the May 2020 IEP recommendation for 1:1 support to address the student’s health and seizure disorder would have been implemented”. The SRO concluded that the fact that this explanation was not provided as a part of the IEP “[left’] a gap as to how the student’s health and safety needs would have been met by the district during the 2020-21 school year”.

This being the case, the SRO found that “the district has not presented a sufficient argument to depart from the IHO’s determination that the district failed to provide the student with a FAPE for the 2020-21 school year”.

M.P. v. New York City Dept of Educ., 21 Civ.7439 (LGS), 2022 WL 4109774 (S.D.N.Y. Sept. 8, 2022) Dispute: Whether the parent’s unilateral placement was appropriate.

Conclusion: The Court reversed the SRO and concluded that the parent’s unilateral placement was appropriate to the extent that the district should pay 3/8 of the student’s tuition costs.

Basis of the Court’s Decision: 175

During the 2020-21 school year, the student was classified as a student with Autism.

The student received remote instruction due to COVID-19 from March 23, 2020 to September 4, 2021 when the Governor authorized schools to reopen for in-person instruction. During the 2020-21 school year the student continued to receive remote instruction upon the election of the parents, who were concerned about the safety of the student and with the consent and cooperation of the unilateral placement.

During the period March 16, 2020 through the end of August 2020, the student received two hours a day of remote instruction including speech-language, occupational therapy, and ABA instead of an eight-hour school day. During the balance of the 2020-21 school year, the student received three hours of remote instruction instead of eight hours a day of in-person instruction.

She was given videos and assignments to do at home for the balance of the school day.

The IHO found that the parents’ unilateral placement “had provided [the student] with educational instruction specially designed to meet her unique needs and supported by such services as were, and are, necessary to permit the student to benefit from instruction”. The IHO, however, approved a reduced amount of tuition reimbursement based on a pro rata amount of remote instruction. More specifically the IHO found that during the period of time that the student received two hours of at-home remote services, the student would receive 2/8 of the school’s cost of tuition. During the time that the student received three hours of at home, remote instruction the IHO found that the student should receive 3/8 of the tuition costs of the private placement.

The SRO reversed the IHO’s determinations. The SRO denied any tuition award on the basis that the parents “had failed to meet their burden of showing that [the private school] had addressed the student’s special education needs”. The SRO questioned the fact that the parents’ elected to continue remote instruction notwithstanding that the Governor had reopened schools as of September 4, 2020, and concluded that “[the parents] were required to demonstrate at the impartial hearing that the instruction and related services that were delivered remotely to the student constituted specialized instruction that addressed the student’s unique needs”. With respect to this, the SRO pointed to the fact that private school staff testified that the student “needed full adult support … throughout the day, direct instruction … and continuous full day 1:1 instruction …”. Needing this, the SRO found that “it was difficult to envision, without further evidence, how the remote program was appropriate for the student”. As indicated, while “[the private school] provided the student with assignments and videos for the remainder of the school day, the SRO “found the record devoid of any testimonial or documentary evidence concerning the content of the assignments or videos, how the student accessed these materials or whether the student was assessed with respect to the completion of any assignment or engagement with videos”. “The SRO acknowledged that [the student] met 33 short-term objectives on [the school’s] IEP, that some skills continued to be a challenge” but that the student “was nevertheless making real progress” including those in the ADL domain. The SRO also found that the hearing 176

record did not contain information regarding how the student’s remote instruction was modified from her direct, in person-instruction.

Upon review, the Court reversed the SRO. It found that for a number of reasons, the parents were “entitled to partial reimbursement” of tuition. Importantly, the Court’s decision makes reference to a “June 2021 Progress Report” 25. The Court states that because the SRO did not have access to this report showing the student’s substantial progress during the period, that the SRO’s decision should be given “less deference” “and the SRO’s decision was “inadequately reasoned”.

Citing to the proposition that progress is persuasive but not dispositive, the Court again referenced the June 2021 Progress Report, which the SRO did not have and which was not considered, and said that this Progress Report showed “remarkable progress” including progress in some areas that was greater than the year before and also in areas that the SRO had “highlighted as challenging for [the student]”. The Court summarized the impact of this progress – which was not before the SRO -- as supporting “a finding that [the school’s] remote program was an appropriate placement”.

The Court found that “[i]n part because the SRO did not consider the June 2021 Progress Report, the SRO’s decision was not supported by a preponderance of the evidence and did not fully address the totality of circumstances in determining whether [the private school’s] remote program was reasonably calculated to enable [the student] to receive educational benefits”. With respect to the SRO’s claim that it was “difficult to envision, without further evidence, how the remote program was appropriate for the student, the Court said that the “appropriateness of [the student’s] remote learning should not be based on what [the student] would have received in [the school’s] in-person program for eight hours a day as the test is whether placement is appropriate not that it is perfect”. The Court found that the remote program “addressed [the student’s] needs, albeit to a limited extent”. The Court said that the “tailored one-to one instruction, with [the parent’s] supervision during the three hours of remote sessions … entitled [the parents] to partial reimbursement in the form of 3/8 of the daily tuition rate as the IHO had found.

On a different note, and also relating to whether the SRO “adequately consider[ed] the totality of the circumstances in determining whether [the private school] reasonably served [the student’s] individualized needs”, the Court concluded that the SRO did not. More specifically, the Court held that the SRO did not “consider the impact of the COVID-19 pandemic for the 202021 school year “other than to note that [the student] had continued remote learning at the parents’ election”. This put “undue weight”, the Court said, “on the fact that the remote learning was voluntary and that [the student] would have received more live instruction if she had Although the June 2021, Progress Report is critically important to the outcome of the Court’s decision, inexplicably the decision provides no explanation as to how the Progress Report came before the Court. Re this, it is possible that the parents requested that the Court hear additional evidence. See 1415(i)(2)(C)(ii); 34 CFR 300.516(c)(2).

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attended school in person. With respect to the parents’ decision, the Court concluded that they had good COVID-19 related reasons to elect to continue remote learning. With further respect to whether the SRO considered the totality of the circumstances, the Court said that this included factors “of which the SRO was unaware or gave no weight -- the June 21, 2021 Progress Report and the serious risks posed by the global pandemic to [the student] and her family”.

Finally, the Court concluded that the student’s “three hours of remote instruction were reasonably calculated to enable [the student] to receive educational benefits”. The Court disagreed with the SRO’s conclusion “that the hearing record lacked information concerning how the one-to-one instruction and related services were modified for remote, as opposed to inperson delivery”. First, the Court held that there was evidence in the record about how the program was modified. Second, the student “was able to engage in certain physical and interactive activities through the remote learning process and even make progress in those activities”. Third, the fact that certain activities may not have been feasible during remote learning “does not weigh heavily towards finding that the remote learning [the student] was engaged in during the live sessions was not appropriate. The Court cited to the fact that group activities at schools functioning in an in person environment also had physical activities limited during the COVID-19 pandemic and “that the parent need not show that a private placement provides every special service necessary to maximize the child’s potential”.

In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) Dispute: Did the district provide the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE) during the COVID-19 pandemic?

Conclusion: The state educational agency determined that the district did not provide the student with a FAPE in the LRE during the COVID-19 pandemic.

Basis of the State Educational Agency’s Decision: On March 15, 2020, the Governor of Maine proclaimed a state of civil emergency to protect public health in the face of the COVID-19 pandemic. Immediately thereafter, most schools in the state, including the student’s, suspended in-person instruction. On March 31, the Governor issued a “stay at home order” prohibiting K12 schools from providing in-person classroom instruction through May 1, 2020. On April 7, the Maine Commissioner of Education recommended that districts extend their remote learning plans through the end of the 2019-2020 school year.

The student was diagnosed with an autism spectrum disorder with accompanying language impairment. Autism rating scales show the student fell within the “moderate to severe” range of concern.

At the time of the March 15, 2020, Governor’s proclamation, the student’s IEP provided that the student receive 3 X 30 minutes per week of speech and language services, 5 X 3 hours per week of behavioral health day treatment, assistive technology, and transportation, 2 X 45 minutes per week of occupational therapy (OT) services, and 1 X 30 minutes per month of OT consultation.

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At the time of the Governor’s March 15 announcement, the student attended a program within a district school.

“The student received no services between March 15, 2020 and April 15, 2020.” On or around April 14, the student began speech and language teletherapy. During this time, the student did not receive any OT services and no specially designed instruction. On or around May 11, the district began offering the student “live,” “remote,” “telehealth” instruction which was composed of 30 minutes per day of “group circle time” with an estimated 20 other children.

During “circle time” there was no individualized instruction, nor any specially designed instruction towards IEP goals. “At some point in May 2020, the student received some OT teletherapy services” which the OT therapist explained were “largely ineffective due to the student’s difficulty maintaining attention on a screen for any length of time.” As a consequence, the therapist spent most of the time coaching the parent to provide “support and guidance”. The district began to provide the student with in-person OT services in July of 2020. By agreement on June 18, 2020, the student’s IEP was amended to include extended school year services.

As of October 2020, the student had not received any specially designed instruction since March of 2020 and had not been receiving district speech therapy since the COVID shutdown in March 2020. Regarding this, the student had “tried to access some [specially designed instruction] remotely during the March -- June shutdown but had difficulty participating” in that in the context of remote learning. Nor did the district enter into any “specific discussion” with the parents about what remote specially designed instruction might look like. And other than the large group zoom meetings, the student was never offered remote specially designed instruction.

With respect to the least restrictive environment (LRE), the parent requested that the student be provided with instruction with a staff to student ratio of less than 1:1. The student’s occupational therapist also provided information to the district that the student’s progress in reaching goals indicated a readiness for a lesser level of support. Further, a review of the level of services provided to the student before the school closure indicated that the program being provided to the student was not exclusively at a 1:1 ratio but sometimes was less than that. However, the distinct felt that a remote services environment was not conducive to an evaluation of an appropriate staff to student ratio for the student and that such decision should await the student’s return to in-person programming. The student and the district continued to discuss issues relating to the student’s LRE from October 29, 2020 to December 1, 2020. On occasions the parents and the district discussed the possibility that the student would return to in-person district programs. At each such occasion the parents were advised that all programs were filled and maintained waiting lists. The reopening date of the program that the student had attended before the pandemic was pushed back a number of occasions. In September 2020, the parents were informed that there was no longer space for the student in that program.

The parents filed a complaint on December 14, 2020. At the time of the complaint the student had not been placed into a program and was not receiving specially designed instruction in any 179

form. The student was receiving home-based occupational therapy services and speech and language services.

According to the state educational agency, OSEP guidance relating to the COVID-19 pandemic, provided that once a district begins to provide educational services to the general student population, the district “must make every effort to provide special education and related services in accordance with each student’s IEP and in a manner that ensures a free appropriate public education for all eligible students”. At the same time, the state educational agency advised that the United States Department of Education’s Office of Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) have stated that “ensuring compliance with the IDEA should not prevent any school from offering educational programs through distance instruction” and that “it is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented natural emergency”. Further, the state educational agency cited to OSEP guidance that in such times, it is “not required to provide the exact service hours of the IEP but should develop plans that are appropriately designed to support student learning in an alternative context”. Cited OSEP guidance also provided “that in situations where special education is unavoidably delayed due to alternative instructional models during the COVID-19 pandemic or where specialized services cannot be adequately delivered in an alternative method, once schools resume normal operations, IEP teams must make an individualized determination as to whether compensatory services may be required”.

Consistent with this, the state educational agency pointed out that once the district began providing remote services to students it was required to provide a FAPE to the student. The state educational agency concluded that the “limited remote services” provided to the student “did not satisfy the requirements of the student’s IEP” and that “therefore [the district] was required to reconvene an IEP Team meeting because the student’s services dramatically changed the substance of special education instruction [to the student] outside of the IEP process”. Regarding “circle time,” the state educational agency pointed out “that this was not specially designed to meet IEP goals or needs” and that “the services provided were simply inaccessible to the [s]tudent. Due to age, maturity, and to disabilities, the [s]tudent could not engage in a large group setting with more than 20 peers and an unfamiliar teacher on a computer screen”.

The state educational agency concluded that because the IEP was not able to be implemented, the district had “a responsibility to reconvene the IEP Team and identify alternative service options” to “meet the student’s needs during the COVID-10 pandemic” and that [the IEP] team could have considered other options, such as remote 1:1 specially designed instruction, specially designed instructional packets prepared specifically for the [s]tudent, or remote coaching services provided to the parents”. In this case “the IEP team meeting was never held and none of these options were considered”.

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The state educational agency also concluded that since “no IEP meeting was held despite a fundamental change in the student’s services there was no opportunity for parent input or objection”.

The state educational agency also found that the district did not provide the student with a FAPE because the district failed to implement the student’s IEP in a “material” way. In this regard, the student was never provided FAPE during the “the end of the 2019-20 school year because “the [s]tudent was never offered specially designed instruction or given a generalized form of remote instruction that was accessible to [him]”. Rather, the remote instruction provided “did not address the student’s IEP goals and did not provide opportunities for the student to progress in light of [the student’s] unique circumstances”. Further, the state educational agency pointed out that the student was without any services during 2020’s extended school year notwithstanding the student’s eligibility for such services.

The State educational agency also found that the district was not educating the student in the LRE. It found that, notwithstanding the failure of the district to provide the student with a FAPE for nearly a full year, the student had “changed and developed immensely” “as a result of engagement with related service providers and as a result of developmental transition” “Additionally other members of the IEP Team including the parent, case manager and former teacher all submitted perspectives indicating that the student’s LRE likely required reexamination.” The state educational agency found that the fact that the district was “not currently providing the student with an educational environment while simultaneously insisting that the [s]tudent needed to be engaged in an in-school educational environment before LRE could be discussed and reconsidered by the IEP Team” was an transition “untenable position” The state educational agency was clear that “the IEP Team must be permitted to collect data, perhaps through a re-evaluation, and consider the question of whether the student’s IEP reflects … the least restrictive environment”.

The state educational agency required that the district engage in a “corrective action plan”. This plan included the reconvening of the student’s IEP Team “to determine a plan for delivering specially designed instruction while the student remains on the wait list for various special purpose private schools”. The plan for specially designed instruction was to be “in keeping with the [s]tudent’s current needs and must consider all options for the possible delivery of services including, but not limited to, receiving 1:1 instruction at a non-educational remote site” such as district offices, “receiving 1:1 synchronous remote instruction, and receiving 1:1 asynchronous remote instruction”. The IEP Team was required “to consider the [s]tudent’s learning needs” when adopting its plan and that if, during this time, the IEP Team anticipated “further delay” it would be required to determine “what additional compensatory services” were owed to the student.

Regarding the LRE, the state educational agency was to “engage in a meaningful discussion about the [s]tudent’s least restrictive environment and, if the parents consent, take steps to re-evaluate the student.

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The state educational agency determined that in this case an award of compensatory education was appropriate. This included 270 hours of compensatory specially designed instruction, an additional 10 hours of compensatory occupational therapy and an additional 10 hours of compensatory speech and language services.

In Re Eastern Howard Sch. Corp. State of Indiana Education Agency, Feb. 26.

2021 (121 LRP 9941) Dispute: Did the District properly implement the student’s IEP during COVID-19?

Conclusion: The State Agency concluded that during COVID-19 the district did not implement the IEP as written and that the IEP Team should have met to revise the IEP. Basis of the Administrative Agency’s Decision: Prior to COVID-19, the student’s IEP included “guided study” in a resource room once a day, specified accommodations, and placement in general education classes in English, reading, physical education, social studies, math and science. In anticipation of the change in instruction due to COVID, the student’s “teacher of record” (TOR) advised the student’s general education teachers that she would be modifying packets for the student’s eLearning assignments and that the student would work on the modified assignments rather than work assigned by the regular education teachers. Further, the TOR would grade and report the student’s marks to the general education teachers based on the modified assignments. Additionally, except for reading, the student would not be required to participate in the general education classes. Subsequent to the cessation of in-person learning, the TOR notified the student’s general education teachers that the student would continue to have alternative assignments and that the student’s completion of progress monitoring activities with the TOR would be counted towards his participation in the general education classes as well as in the guided study class. Additionally, the guided study class would be an hour a week and not daily. Throughout Spring 2020, the student’s TOR frequently sent e-mails to check in, offered to help with assignments, and reminded the student to submit assignments on line. The student was welcome but not required to join zoom meetings for his general education classes and he was not required to do the assigned work in those classes. He was to complete the assignments provided by the TOR, which focused on his goals. The TOR also provided log-in information and a tutorial video for assigned activities by subject area. The TOR offered additional zoom sessions to review general education materials and to progress monitor, outside of the otherwise scheduled weekly guided study period. Among other things, the TOR also emailed the student if he missed a period and reminded him to stay on top of the assignments that she provided so that the student did not fall behind. The IEP Team did not meet to address these changes. Nor did the parents and the school amend the IEP without an IEP Team meeting. The school resumed inperson learning at the start of the 2020-21 school year and continued except for days that the student was under quarantine. Consistent with his existing IEP, the student received guided study once per day and fully participated in his general education classes. He received assignments as a part of the regular education curriculum rather than different assignments from his TOR. When quarantined, he participated in electronic learning as did the other general 182

education students. Upon review, the state agency concluded that the student’s IEP was not implemented during the spring 2020 semester but was during the fall 2020 semester. The state agency determined that the school district should consider the provision of compensatory services to put the student in the same place as he would otherwise have been in.

New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID-19related school closure in the provision of special education and related services.

Conclusion: The administrative agency determined that the district did not.

Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format.

First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the 183

district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year.

In Re Student with a Disability – District of Columbia State Agency – 9-14-2020 Dispute: Parent sets forth that the student was denied a FAPE and should be provided with compensatory education because, among other things, behavioral support services (BSS) were not provided “as needed and agreed upon” and a BIP was not provided despite team agreement.

Conclusion: The administrative officer concluded, among other things, that the student should have received behavioral support services and a BIP sooner than they were provided and determined that a program of compensatory education was appropriate.

Basis of the Administrative Officer’s Decision: The district suspended in-person learning in midMarch 2020. The administrative officer concluded that the student was “very capable with proper supports” and was making overall progress before in-person learning was suspended.

After the March suspension of school services, the student was provided with online services.

“The student did not complete many assignments with distance learning at the end of 2019/20.”

The administrative officer concluded that at the April 24, 2020 team meeting, the school psychologist agreed that a BIP should be provided and the social worker was tasked to do that.

A BIP was provided following the April 29, 2020 IEP meeting. However, the BIP “was not finalized or implemented until after [June 9, 2020]”. The administrative officer found that “the student needed a BIP to be added before the end of the 2019-2020 school year and that “[t]his might well have assisted [the student] with distance learning as [the student] had an extremely difficult time staying on task and with self-initiation and was unable to complete many assignments with distance learning at the end of 2019/20”.

Regarding the provision of BSS, the administrative officer found that at the time of the April 29, 2020 IEP team meeting, the IEP team agreed that the student needed behavioral support and that there was enough information at that meeting to add BSS to the student’s IEP. However, BSS services were not added until the June 12, 2020 IEP. The administrative officer concluded that this delay was “an important missed opportunity to support [the student] in distance learning, which might have been pivotal as the student did not complete many assignments with distance learning at the end of 2019-/20”.

The administrative officer concluded “that taken together the delay in providing BSS and a BIP to [the student] are a denial of FAPE by not providing the support that [the student] needed when 2019-20 shifted to distance learning, causing educational harm” and therefore that the student’s April 29, 2020 IEP was not reasonably calculated to enable the student to make appropriate progress.

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The administrative officer concluded that the student should receive compensatory education in the form of 150 hours of independent tutoring and 20 hours of counseling in the school setting.26 In Re Student with a Disability—Wisconsin State Agency – 9-13-20 – 77 IDELR 173 Dispute: Whether the district during the 2019-20 school year properly implemented the individualized education program of a student with a disability Conclusion: The State agency held that the district failed to implement the student’s IEP and that the district should conduct an IEP meeting to determine the extent of additional services required as a result of this failure Basis of the Agency’s Decision: On March 12, 2020, the district’s IEP team met to determine the student’s IEP and placement. Among other things, the IEP team determined that the student should receive homebound services, would meet with teachers once a week to go over weekly assignments, and that tests would be read out loud when the purpose of the test is not to assess the student’s reading ability. The student’s IEP was to be implemented on March 13, 2020. As a result of the COVID-19 health emergency, on March 18, 2020 the district began providing all students “distance learning via virtual instruction”. Relying on federal guidance, the state agency advised that “[s]chool districts must provide equal access to educational opportunities to students with disabilities if those opportunities are provided to the general student population during that time, including the provision of a [FAPE]. When a school has been closed according to a statewide order each student with a disability must be offered the special education and related services identified in the student’s IEP to the greatest extent possible”. 27 During the period March 18, 2020 to the end of the school year the district provided the student with general education instruction and specially designed instruction in accordance with his IEP until the end of the 2019-20 school year. However, the district did not arrange for the student to meet virtually with a teacher each week to discuss assignments as provided for in the IEP. Nor did the district have the student’s tests read aloud as set forth in the IEP. The state agency held that the district should have “arranged to implement the student’s IEP to the greatest extent possible” and that to do both was reasonable.

The administrative officer also found that the student did not have appropriate academic goals for the first two terms of the 2019-20 school year and that this was a denial of FAPE for which the student should receive compensatory education. The administrative officer did not break out how much of the ordered 150 hours of tutoring and 20 hours of counseling was the result of this and how much of the ordered tutoring and counseling was the result of the district’s failure to provide the student with a timely BSS program and a timely BIP. 27 The decision after complaint cited to Department of Education fact sheets dated March and March 21. See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, United States Department of Education, (March 2020); Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools while Serving Children with Disabilities, United States Department of Education (March 21, 2020).

26

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The state agency advised the district that it “must conduct an IEP meeting with the parents to determine the extent of the additional services required for the failure to implement the student’s IEP”.

In Re Long Beach Unified School District /California State Agency/10-12-20; 120 LRP 33840 Dispute: Whether, as a result of a violation of an IEP, the student should be provided with compensatory education.

Conclusion: The Administrative Officer concluded that the district denied the student a FAPE including for failure to materially implement an IEP, and awarded compensatory education.

Basis of the Administrative Officer’s Decision (see pp. 20, 23-25; 47-48): The student was eligible for special education as a student with an intellectual disability. The October 19, 2019 IEP provided that the student would receive, among other things, 55 per cent of time in special education direct teaching services and 45 per cent of time in regular education services, and individual speech and language services five times a month for 25 minutes per session. According to this IEP, the student would receive five hours a day of specialized academic instruction.

The administrative officer concluded that the district denied the student a FAPE by virtue of the fact that because of the COVID-19 pandemic and contrary to the student’s October 2019 IEP, it did not provide the student with any instruction between March 16, 2000 and April 9, 2020.28 The administrative officer also concluded that because of the pandemic, the district had failed to materially implement that IEP when, during the period April 23,2020 through April 28, 2020, it provided the student with only 80 per cent of the instruction that the district was required to provide under the October 2019 IEP. In other parts of the decision, the administrative officer found, among other things, that the district had also failed to offer appropriate goals and speech and language services, had failed to consider behavior interventions, had failed to assess the student with respect to behavior, occupational therapy, assistive technology and had failed to offer behavioral services.

As relief, among other things, and to compensate for all of the district’s FAPE violations, the administrative officer found that the student should be provided with 45 hours of after-school speech therapy services provided by a non-public agency, and also should fund Lindamood-Bell’s “intensive and visualizing program” for four hours per day up to a total of 10 weeks, and that program’s related assessments.

Note that apparently the district did not provide any instruction to any student during the period of time March 16March 22, 2020.

28

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In Re Student with a Disability North Dakota State Agency 11-10-20;120 LRP 36828 Dispute: Whether the district deprived the student of a FAPE when it failed to completely implement an Individualized Contingency Learning Plan (ILP) during the COVID-19 pandemic.

Conclusion: The IHO concluded that the district’s failure to implement the accommodations in the student’s Individualized Learning Plan (ILP) was minor, did not constitute a material failure to implement the student’s Individualized Education Program (IEP) and therefore did not deny the student a FAPE. Basis of the Administrative Agency’s Decision: Because of COVID-19, the student’s school opened with a hybrid schedule of 2 days of face-to-face instruction and 3 days of virtual instruction. The district developed an Individualized Learning Plan (ILP) for the student with online services to address school interruption during the COVID-19 pandemic.

The plan contained accommodations in addition to that on the student’s IEP including “classroom-based learning” to be sent home during the student’s in-home instruction and recording classroom teaching. On the first day of school, the school did not provide copies of the virtual classroom lessons as specified in the ILP. Consequently, the school and parent arranged for the virtual lessons to be provided, the district offered to deliver the slides, but the parent picked the documents up on the same day. During the district’s second day, it delivered copies of the virtual classroom lessons to the wrong house and a neighbor delivered that to the parent the following day. The district also failed to provide the student with a copy of the classroom teaching recording. The district contends that this was “inadvertent”. As a result, the district implemented a multi-stepped and detailed plan to address the parent’s concerns. Among other things, the ILP was amended to remove the accommodation related to classroom instruction.

Additionally, the student began receiving an additional 1 and ½ hours of instruction at school “to address the [ ] frustrat[ion] with any schoolwork expectation in the home setting”.

Among other things, the administrative judge found that there was no evidence that “the student failed to make progress due to the school’s belated provision of copies of the virtual classroom lessons” and the student’s “general education assessments show[ed] steady growth”.

The administrative judge noted that “(a) failure to implement accommodations required by a student’s IEP may result in a denial of FAPE but a minor failure to provide the services required by an IEP does not constitute a material failure to implement the IEP” denying FAPE. The administrative judge concluded that ”while it does appear that the school failed to properly implement the [ILP], the school’s failure to provide timely copies of the virtual lessons, on a few occasions during the first week of school during the COVID-19 pandemic, when everyone [was] under pressure from challenges posed by a new COVID-19 related hybrid schedule, [did] not constitute a material failure to implement the [ ] IEP” and so was not a substantive violation of the IDEA, and thus did not deny the student a FAPE. 187

In re Mahwah Twp. Pub. Sch. Dist. (State of New Jersey Education Agency, May 4, 2021 (78 IDELR 236) Dispute: Whether the district could satisfy its obligations by offering to provide the student with a program of full time virtual learning in circumstances where the existing IEP required that the student receive nursing services in school four days a week notwithstanding that the agency that had provided the district with nursing services for the student was unable to provide the student with such services and, at the time of the hearing, the district had not been able to find replacement services.

Conclusion: The district could not satisfy its obligations by offering to provide the student with a program of full-time virtual learning in circumstances where the existing IEP required that the student receive nursing services in school four days a week notwithstanding that the agency that had provided the district with nursing services for the student was unable to provide the student with such services and, at the time of the hearing the district had not been able to find replacement services.

Basis of the State Educational Agency’s Decision: The parent requested emergency relief; one basis upon which was “a break in the delivery of services”. In order to obtain such emergency relief, state law provided that the Judge must determine that the petitioner suffers “irreparable harm,” that the legal right at issue be “settled”; that the petitioner has a “likelihood of success on the merits”; and that the “equities/interests” balance in favor of the petitioner.

In this case, the student’s IEP provided “for a one-to-one nurse to accompany the [student] while at school and on the school bus”. Prior to February 17, 2021, as were the other students at the school, the student had been attending school in-person four days a week and one day a week virtually. At that time, the nursing agency notified the parent and the district that the agency nurse who was providing services to the student was no longer willing to provide such services.

The district attempted to find the student replacement nursing services but to the date of the hearing had not been able to do so. Therefore, the district asked the parent to allow the student to attend school virtually full time, as virtual instruction could be provided to the student five days a week while the district searched for a replacement nurse. The district asserts that under such circumstances, the student was not “denied any services because [the student] could access her classes and other services virtually”. The parent “asserts that [the student’s] medical conditions and behavior require the assistance of a one-to-one nurse” when the student is at school and that the “district’s failure to provide a nurse is preventing the student from attending school and receiving the services that she is entitled to in her IEP”. The parent also asserted that the student’s needs prevented her from participating effectively in virtual sessions.

The state educational agency (SEA) determined that there was “a break in the delivery of [nursing] services” and that “irreparable harm [would] result if the nursing services provided for in [the student’s] IEP are not restored”. According to the SEA, there was no “dispute” that he student’s IEP provided the student with nursing services at school. That being the case, the SEA concluded that if can only be “presumed” that this was a service that the student requires at this 188

time. And that since the student was not receiving the services that the IEP Team had “evidently determined” that the student needed “in order to attend school in-person and because [the student] has been attending school in-person four days per week and can only do so with the nurse”. The SEA also found that the district’s failure to provide nursing services agreed to by the IEP Team and set forth in the student’s IEP constituted a “well settled” “legal right” and that because of this the parent was likely to prevail on the merits. With respect to the equities/interests of the test, the SEA concluded that the harm to the student was greater than the harm to the district as the student “would not have the benefit” of the IEP-required nursing services “should [the student] continue to attend school in-person”, and that the student “would also suffer greater harm should she not attend in-person instruction/services due to the absence of nursing services”.

The SEA concluded that the student “should continue to receive nursing services in accordance with the IEP currently in effect and that the district should continue to make all reasonable efforts to immediately secure [the relevant] nursing services for [the student]”.

In re Metropolitan Sch. Dist. of Pike Township, State of Indiana Education Agency, Feb. 26, 2021 (121 LRP 9939) Dispute: Did the district properly implement the student’s IEP during COVID-19?

Conclusion: The district did not properly implement the student’s IEP during COVID-19.

Basis of the state agency’s decision: In response to the COVID-19 pandemic, the governor of Indiana issued executive orders on March 19, and April 2, 2020 closing all public schools in the state and requiring them to provide instruction via remote learning for the rest of the 2019-20 school year. By letter dated April 13, 2020, the Metropolitan School District of Pike Township (the district) notified parents that students with IEPs would have their plans implemented “to the best of the (IEP Team’s) ability” and that “how” the plans would be implemented “would be proportionate to the remote learning schedule and setting”. Prior to the pandemic, in accordance with the student’s IEP, the student’s program had included seven classes during the day. These classes included “small group intensive reading and writing instruction in an English language arts lab classroom once a day for 45 minutes,” “small group math instruction in a math lab classroom once a day for 45 minutes”, “and “classroom assignment and homework assistance in a resource classroom once a day for 45 minutes”.

During the district’s remote learning days and after the district’s April 13, 2020 letter, live virtual instruction “was not routinely conducted’. Additionally, the student did not receive small group instructional services including “classroom assignment and homework assistance” once a day for 45 minutes from a resource room teacher. Further, the student did not receive his IEP-required “small group intensive reading and writing instruction in the English language arts lab classroom’, or his ‘small group math instruction in the math lab classroom’.

The state administrative agency found that the district “did not implement the student’s IEP as written, nor did it convene the student’s (IEP Team meeting) to review or revise the student’s 189

IEP”. As a consequence, the state administrative agency concluded that the district’s IEP Team would need to consider whether the student should be provided with compensatory education services. In making this decision, the district was required to consider the “actual amount of service hours missed and the level of specialized instruction that would have been provided”, “the student’s capacity to receive education hours, considering the age of the student, the severity of the disability, the cognitive and/or attentional ability, the physical/mental stamina to receive additional instruction outside of the school day, and other mitigating factors”, and the extent to which there had been “a negative impact on the student’s progress.

MISCELLANEOUS Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) Issue: COVID-19 and deference Dispute: Whether the SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction or were outside the SRO’s scope of administrative review.

Conclusion: The SRO was required to consider questions that purportedly implicated “systemic” considerations and specifically the extent that the parent took issue with the State’s executive decision to close schools or the district’s decision to deliver instruction remotely were within the SRO’s jurisdiction.

Key Take Away: In an important victory for parents, the United States District Court for the Southern District of New York held that although the Covid-19 Pandemic resulted in the closing of schools to all students and the initiation of remote instruction to all (“systemic considerations”), a student’s individual rights to be provided with a FAPE during COVID-19 under the IDEA could not be ignored but must be reviewed by the SRO in circumstances where the question at issue involved individual relief that the SRO was capable of providing.

Reasoning: The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020 through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended 190

a week on line and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) provided for a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year, placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and with extended school year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020 the parent filed a due process complaint notice. The complaint asserted that (1) the district had “unilaterally, substantially, and materially” changed the student’s “status quo” program from a school classroom to her home and (2) the district “had failed to provide a FAPE since mid-March 2020. As relief, among other things, the parent requested “an extensive independent evaluation of [the student] to determine the need for compensatory services and a new [CSE] meeting to review the same”, “a determination of appropriate compensatory services [for the student] due to the denial of FAPE”, and “an interim order requiring [the student’s] school district to immediately implement [the student’s] IEP by reopening her school”.

On August 31, 2021, the IHO found that the student was entitled to an independent educational evaluation (IEE). On December 2, 2021, [the IHO] dismissed [the parent’s] complaint in part holding that her request for an order reopening [the student’s] school was moot in light of [the school’s] return to full-time in-person instruction”. “On February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year and (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] took issue with the State’s executive decision to close schools or the [district’s] decision to deliver instruction remotely”, “the state administrative process lacked jurisdiction over the complaint” as the decisions being challenged were “systemic in nature” as the COVID-19 related claims were relevant to other students and thus were “outside the scope of administrative review under the IDEA, which focuses on how to define and treat individual students’ learning disabilities.”.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. With respect to the SRO’s finding that the parent’s claim regarding the State’s executive decision to close school or the district’s decision to deliver instruction remotely “were 191

outside of the scope of administrative relief and that therefore the SRO lacked jurisdiction to consider them, because they were “systemic in nature”, the Court disagreed. The Court started out with the proposition that the SRO’s decision in relevant part “implicates a question of law” and therefore the Court owes no “deference” to such decision. The Court concluded that “[e]xercising de novo review, … the SRO’s conclusion – that local authorities were categorically barred from assessing [the parent’s] due process complaint that her daughter had been denied a FAPE because the claim implicated systemic considerations – [were] inconsistent with the IDEA’s text and the caselaw applying it”. Regarding the “systemic violation exception to administrative exhaustion” the Court pointed out that this was “addressed to a different context: one in which collective challenges are brought and collective relief is sought”. But, the Court said, this “does not mean that state administrative tribunals are barred –or may abstain -- from hearing claims by an individual parent of a FAPE denial that implicates broader policies”. The Court further pointed out that the “individualized claim does not seek relief that an SRO is incapable of providing”. Rather here, the court also pointed out that “[the parent] seeks a finding that [the student] was denied a FAPE and as a remedy an extensive independent evaluation of [the student] to determine the need for compensatory services, and a remedial order requiring [the district] to provide [the student] with such services”. The Court stated that the parent’s “bid for individualized relief for her daughter thus is well within the heartland of IDEA claims”.

In its decision, the Court pointed out that “[i] sum, by refusing to adjudicate this case on the false premise that [the SRO] lacked power to hear it, the SRO here failed to discharge her fundamental obligation under the IDEA: to decide on substantive grounds whether [the student] received a free appropriate public education”. The Court continued that it “reject[ed] the SRO’s rational that claims of FAPE denials that implicate systematic considerations, like the delivery of remote instruction and services to students with disabilities during the pandemic are categorically beyond the jurisdiction of the IDEA’s impartial hearing process to individually remedy”. The Court said that “[p]rovided that the remedy sought is one that an SRO has the power to award and that the parent has otherwise complied with the IDEA’s dictates, the SRO is obliged to address such claims”.

Issue: COVID-19

Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024)

Dispute: Was the district’s mask mandate a violation of the right to Substantive Due Process protected by the Fourteenth Amendment.

Conclusion: The district’s mask mandate did not entail a violation of the right to Substantive Due Process protected by the Fourteenth Amendment.

Key Take Away: A mask mandate did not infringe upon a parent or student’s “fundamental right” where a physician for the district did not agree with the parent and the student’s physician that a mask would adversely affect the student’s health.

Reasoning: 192

The student in this case is eligible for special education because of severe asthma.

“Beginning in the fall of 2020 and continuing throughout the early stages of the COVID-19 pandemic, the New York State Department of Health (NYSDOH) issued a series of interim guidance covering in-person instruction at schools”. Initial guidance on August 26, 2020, required that “all students, faculty, staff and other individuals at schools wear at least an acceptable face covering and permitted exemptions of alternatives for those medically unable to wear masks”.

On April 9, 2021, the state modified its initial mandate to include “a mask mandate similar to that in the first interim guidance and permitted exemptions from the school mask, mandate for students who are unable to medically tolerate a mask, including students where such mask would impair their physical health or mental health”. For the 2020-21 school year, the NYSDOH allowed a school district to reopen “on the condition that it complied with the mask mandate”.

“Accordingly [the district] implemented a reopening plan that required all individuals to wear face masks while on school premises”.

For the 2020-21 school year, the student’s parent requested that the district “secure a medical exemption from the mask mandate …”. The parent’s efforts were unsuccessful. The district ultimately requested that the parent provide a “formal exemption letter from a physician.” The parent then obtained a letter from the student’s treating physician verifying that the student had asthma and setting forth that she “should be allowed to engage in physical activity without a mask in order to prevent wheezing”. The district rejected the parent’s request. Ultimately, the district advised the parent that on the advice of the district’s consulting physician, who had spoken with the student’s physician, it was “denying [the student’s] medical exemption request” based on the conclusion “that the mask was not creating difficulty with [the student’s] asthma”.

The parent subsequently requested of the district that the student attend school remotely, which request was denied. Thereafter, the parent requested that the student “be placed in a classroom with air conditioning and that she be allowed to wear a face shield or mesh mask as opposed to a cloth mask”. The district denied this request. For the 2021-22 school year, the parent sought another exemption for the student with the support of the student’s physician who “certified” that the student “is not medically able to tolerate a mask”. The district denied this request on the recommendation of its consulting physician but did agree to assign the student to a classroom with air conditioning. Thereafter the state issued guidance for the 2021-22 school year which required that all persons and visitors to the school “must wear masks at all times indoors…and permitted exemptions for people with medical or developmental conditions that prevent them from wearing a mask”.

The parent filed a complaint in federal District Court on September 7, 2021. The Complaint set forth “constitutional and statutory” violations and sought injunctive relief and damages. The Court initially denied the parent’s motion for a temporary injunction and then for a preliminary injunction. Regarding this, the Court “concluded that rational basis review applied to the mask mandate because the mandate did not impinge on any fundamental right”. On November 3,

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2021, the parties reported to the Court that they had reached a settlement agreement that would see the student wearing a mesh mask at school”.

The parent filed an amended complaint on January 20, 2022, alleging a number of causes of action. Among other things, the complaint alleged in Count 2 a “violation of the student’s right to Substantive Due Process in that the district’s actions “violated [the parent’s] right to refuse medical interventions that place the child at risk of harm as documented by a licensed physician”.

In a decision dated March 24, 2023, the Court dismissed the plaintiff’s amended complaint in its entirety. Regarding Count 2, the Court dismissed that on the basis that it failed to state a claim.

The parent now appeals, among other things, the District Court’s denial of the parent’s Substantive Due Process claim. As indicated above, the parent asserted “that the school district’s actions in enforcing the mask mandate against [the student] violated the Due Process Clause of the Fourteenth Amendment because they infringed on multiple fundamental constitutional rights and fail to satisfy strict scrutiny”. The parent argued further, “that even if rationale basis review applies, [the district’s] conduct was unconstitutional”. The district countered that the District Court’s decision should be affirmed because its actions “did not implicate a fundamental constitutional right and easily satisfies rationale basis review”.

The Court of Appeals agreed with the district. It considered the parent’s arguments that the mask mandate “essentially” infringed upon “three fundamental rights: (1) the right to a medical exemption deriving from the right to self-preservation, (2) the right to refuse medical treatment, and (3 the parental right to make medical decisions for one’s own children” and further, the argument that the district’s conduct did not satisfy strict scrutiny review.

Regarding a parent’s “right to a medical exemption deriving from the right to self-preservation” and “based solely on her physician’s recommendation”, the Appeals Court said that it was “not unreasonable for a school policy to require that requests for a medical exemption be reviewed by the school’s physician, particularly when the policy is designed to protect the health of all students and staff and that more generally, it is reasonable for the government to condition the application of a medical exemption to a public health mask mandate on a determination that the individual seeking the exemption would, in fact, be harmed by wearing a mask”. Further, the Appeals Court said that the parent “offers no persuasive authority to support her suggestion that an individual is entitled to a medical exemption whenever that individual can identify a licensed medical provider who will support her request”. Consistent with this, the Appeal’s Court concluded that “there is no fundamental right to a medical exemption based exclusively on the recommendations of a [parent’s] physician”.

With respect to the right to refuse medical treatment, the Appeals Court said that first, “while the mask mandate was obviously intended as a health measure, it no more requires a medical treatment than laws requiring shoes in public places or helmets while riding a motorcycle”. Not only is it not a medical treatment, the Appeals Court said, it is not “a restraint so onerous as to 194

merit heightened constitutional scrutiny”. Further, the Appeals Court said, “even if we were to assume that the wearing of a mask constitutes a medical treatment, the School District did not infringe any fundamental right to refuse such a treatment in this case”.

As it relates to a parent’s right to make medical or educational decisions for their children, the Court said that “parents have no constitutional right to provide their children with education unfettered by reasonable government regulation”. The Appeals Cout agreed that “[a]lthough parents possess the right to make decisions regarding the upbringing of their children” the parent here “has not shown that any such right is infringed by a school district denying a medical exemption from, a public health measure based solely on the recommendation of a child’s physician”.

There being “no fundamental constitutional right involved”, the question becomes, the Appeals Court said, was whether “the School District’s mask mandate survives rational basis review”. The Appeals Court pointed out that under rational basis review “the challenged government action is afforded a strong presumption of validity and need only be reasonably related to a legitimate state objective to survive”. The Appeals Court said that here the mask mandate “survives rational basis review because it was reasonably related to a legitimate state objective: ensuring the health and safety of all students, teachers, and visitors on school grounds by curbing the spread of COVID-19”. It is “well settled” the Court said “that public health is a legitimate state intertest”.

Moreover, the Court said that “the School District’s mandate against [the student] was reasonably related to that legitimate state interest” in that “the School District could have rationally determined that granting [the student] an exemption would have endangered the health of other students and faculty within the district”. Moreover, the Appeals Court said that “[the district] also could have rationally have determined that [the student] could medically tolerate a mask since the School District’s consulting physician determined as much after conferring with [the student’s] physician”.

In re Student with a Disability, Maine State Educational Agency, Feb 12, 2021 (121 LRP 9943) Dispute: Did the district provide the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE) during the COVID-19 pandemic?

Conclusion: The state educational agency determined that the district did not provide the student with a FAPE in the LRE during the COVID-19 pandemic.

Basis of the State Educational Agency’s Decision: On March 15, 2020, the Governor of Maine proclaimed a state of civil emergency to protect public health in the face of the COVID-19 pandemic. Immediately thereafter, most schools in the state, including the student’s, suspended in-person instruction. On March 31, the Governor issued a “stay at home order” prohibiting K12 schools from providing in-person classroom instruction through May 1, 2020. On April 7, the 195

Maine Commissioner of Education recommended that districts extend their remote learning plans through the end of the 2019-2020 school year.

The student was diagnosed with an autism spectrum disorder with accompanying language impairment. Autism rating scales show the student fell within the “moderate to severe” range of concern.

At the time of the March 15, 2020, Governor’s proclamation, the student’s IEP provided that the student receive 3 X 30 minutes per week of speech and language services, 5 X 3 hours per week of behavioral health day treatment, assistive technology, and transportation, 2 X 45 minutes per week of occupational therapy (OT) services, and 1 X 30 minutes per month of OT consultation.

At the time of the Governor’s March 15 announcement, the student attended a program within a district school.

“The student received no services between March 15, 2020 and April 15, 2020.” On or around April 14, the student began speech and language teletherapy. During this time, the student did not receive any OT services and no specially designed instruction. On or around May 11, the district began offering the student “live,” “remote,” “telehealth” instruction which was composed of 30 minutes per day of “group circle time” with an estimated 20 other children.

During “circle time” there was no individualized instruction, nor any specially designed instruction towards IEP goals. “At some point in May 2020, the student received some OT teletherapy services” which the OT therapist explained were “largely ineffective due to the student’s difficulty maintaining attention on a screen for any length of time.” As a consequence, the therapist spent most of the time coaching the parent to provide “support and guidance”. The district began to provide the student with in-person OT services in July of 2020. By agreement on June 18, 2020, the student’s IEP was amended to include extended school year services.

As of October 2020, the student had not received any specially designed instruction since March of 2020 and had not been receiving district speech therapy since the COVID shutdown in March 2020. Regarding this, the student had “tried to access some [specially designed instruction] remotely during the March -- June shutdown but had difficulty participating” in that in the context of remote learning. Nor did the district enter into any “specific discussion” with the parents about what remote specially designed instruction might look like. And other than the large group zoom meetings, the student was never offered remote specially designed instruction.

With respect to the least restrictive environment (LRE), the parent requested that the student be provided with instruction with a staff to student ratio of less than 1:1. The student’s occupational therapist also provided information to the district that the student’s progress in reaching goals indicated a readiness for a lesser level of support. Further, a review of the level of services provided to the student before the school closure indicated that the program being provided to the student was not exclusively at a 1:1 ratio but sometimes was less than that. However, the distinct felt that a remote services environment was not conducive to an evaluation of an appropriate staff to student ratio for the student and that such decision should await the 196

student’s return to in-person programming. The student and the district continued to discuss issues relating to the student’s LRE from October 29, 2020 to December 1, 2020. On occasions the parents and the district discussed the possibility that the student would return to in-person district programs. At each such occasion the parents were advised that all programs were filled and maintained waiting lists. The reopening date of the program that the student had attended before the pandemic was pushed back a number of occasions. In September 2020, the parents were informed that there was no longer space for the student in that program.

The parents filed a complaint on December 14, 2020. At the time of the complaint the student had not been placed into a program and was not receiving specially designed instruction in any form. The student was receiving home-based occupational therapy services and speech and language services.

According to the state educational agency, OSEP guidance relating to the COVID-19 pandemic, provided that once a district begins to provide educational services to the general student population, the district “must make every effort to provide special education and related services in accordance with each student’s IEP and in a manner that ensures a free appropriate public education for all eligible students”. At the same time, the state educational agency advised that the United States Department of Education’s Office of Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) have stated that “ensuring compliance with the IDEA should not prevent any school from offering educational programs through distance instruction” and that “it is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented natural emergency”. Further, the state educational agency cited to OSEP guidance that in such times, it is “not required to provide the exact service hours of the IEP but should develop plans that are appropriately designed to support student learning in an alternative context”. Cited OSEP guidance also provided “that in situations where special education is unavoidably delayed due to alternative instructional models during the COVID-19 pandemic or where specialized services cannot be adequately delivered in an alternative method, once schools resume normal operations, IEP teams must make an individualized determination as to whether compensatory services may be required”.

Consistent with this, the state educational agency pointed out that once the district began providing remote services to students it was required to provide a FAPE to the student. The state educational agency concluded that the “limited remote services” provided to the student “did not satisfy the requirements of the student’s IEP” and that “therefore [the district] was required to reconvene an IEP Team meeting because the student’s services dramatically changed the substance of special education instruction [to the student] outside of the IEP process”. Regarding “circle time,” the state educational agency pointed out “that this was not specially designed to meet IEP goals or needs” and that “the services provided were simply inaccessible to the

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[s]tudent. Due to age, maturity, and to disabilities, the [s]tudent could not engage in a large group setting with more than 20 peers and an unfamiliar teacher on a computer screen”.

The state educational agency concluded that because the IEP was not able to be implemented, the district had “a responsibility to reconvene the IEP Team and identify alternative service options” to “meet the student’s needs during the COVID-10 pandemic” and that [the IEP] team could have considered other options, such as remote 1:1 specially designed instruction, specially designed instructional packets prepared specifically for the [s]tudent, or remote coaching services provided to the parents”. In this case “the IEP team meeting was never held and none of these options were considered”.

The state educational agency also concluded that since “no IEP meeting was held despite a fundamental change in the student’s services there was no opportunity for parent input or objection”.

The state educational agency also found that the district did not provide the student with a FAPE because the district failed to implement the student’s IEP in a “material” way. In this regard, the student was never provided FAPE during the “the end of the 2019-20 school year because “the [s]tudent was never offered specially designed instruction or given a generalized form of remote instruction that was accessible to [him]”. Rather, the remote instruction provided “did not address the student’s IEP goals and did not provide opportunities for the student to progress in light of [the student’s] unique circumstances”. Further, the state educational agency pointed out that the student was without any services during 2020’s extended school year notwithstanding the student’s eligibility for such services.

The State educational agency also found that the district was not educating the student in the LRE. It found that, notwithstanding the failure of the district to provide the student with a FAPE for nearly a full year, the student had “changed and developed immensely” “as a result of engagement with related service providers and as a result of developmental transition” “Additionally other members of the IEP Team including the parent, case manager and former teacher all submitted perspectives indicating that the student’s LRE likely required reexamination.” The state educational agency found that the fact that the district was “not currently providing the student with an educational environment while simultaneously insisting that the [s]tudent needed to be engaged in an in-school educational environment before LRE could be discussed and reconsidered by the IEP Team” was an transition “untenable position” The state educational agency was clear that “the IEP Team must be permitted to collect data, perhaps through a re-evaluation, and consider the question of whether the student’s IEP reflects … the least restrictive environment”.

The state educational agency required that the district engage in a “corrective action plan”. This plan included the reconvening of the student’s IEP Team “to determine a plan for delivering specially designed instruction while the student remains on the wait list for various special purpose private schools”. The plan for specially designed instruction was to be “in keeping with 198

the [s]tudent’s current needs and must consider all options for the possible delivery of services including, but not limited to, receiving 1:1 instruction at a non-educational remote site” such as district offices, “receiving 1:1 synchronous remote instruction, and receiving 1:1 asynchronous remote instruction”. The IEP Team was required “to consider the [s]tudent’s learning needs” when adopting its plan and that if, during this time, the IEP Team anticipated “further delay” it would be required to determine “what additional compensatory services” were owed to the student.

Regarding the LRE, the state educational agency was to “engage in a meaningful discussion about the [s]tudent’s least restrictive environment and, if the parents consent, take steps to re-evaluate the student.

The state educational agency determined that in this case an award of compensatory education was appropriate. This included 270 hours of compensatory specially designed instruction, an additional 10 hours of compensatory occupational therapy and an additional 10 hours of compensatory speech and language services.

Eaton Community City Sch, Ohio State Educational Agency, Apr. 30, 2021 (121 LRP 20304) Dispute: In light of COVID-19 did the district provide the student with a timely functional behavioral assessment and a timely behavioral intervention plan?

Conclusion: The state educational agency determined that the district did not provide the student with a timely functional behavioral assessment and a timely behavioral intervention plan.

Basis of the State Educational Agency’s Decision: Federal regulation at 34 C.F.R. 300.530(f)(1) provides that in circumstances where the local educational agency, the parent, and relevant members of the IEP Team make a determination that relevant student conduct is a manifestation of the child’s disability, the IEP Team must either (i) conduct a functional behavioral assessment, unless the district had conducted a functional behavioral assessment before the relevant date and implement a behavioral intervention plan for the child or (ii) if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it as necessary, to address the behavior.

In this case, the parent requested an initial special education evaluation on February 25, 2020.

The student was involved in a “disciplinary incident” on March 4, 2020. A manifestation review meeting was held in March 2020. As a result of this meeting, it was found that “the behavior leading to the disciplinary removal [was] a manifestation of the student’s disability”. At the time of the meeting the student had neither a functional behavioral assessment (FBA) nor a behavioral intervention plan (BIP). “The initial consent for evaluation was signed by the parent on March 9, 2020 with a due date for completion by May 8, 2020. “The [IEP Team] began the process of conducting an evaluation, including areas of behavior, in March of 2020…”. However, because of the COVID-19 pandemic, by order of the Governor the district’s schools were closed by March 16, 2020. The “student began receiving services remotely on March 16, 2020 with his peers.”

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According to the state educational agency, “[f]ederal and state directives indicate that if classroom observation or face to face testing are required, evaluations should be delayed until schools reopen to allow for these required evaluation components”. On April 20, 2020, by prior written notice, the district proposed to extend the timeline for the initial evaluation “as quickly as possible once schools are reopened by the State”. “Students were permitted to receive services in-person and in-buildings daily at the start of the 2020-2021 school year.” Parental consent for an FBA “was obtained on October 1, 2020”. The student’s evaluation, including two classroom observations was completed in November 2020. The [s]tudent was determined eligible as a student with a disability on November 16, 2020. “The [d]istrict provided a copy of an FBA, with a meeting date of December 10, 2020. The student’s initial IEP was completed on December 15, 2020. “[O]ther than what was contained within the safety plan or the IEP”, the district did not submit a BIP to the state educational agency for review.

The state educational agency found that the district was in violation of 34 CFR 300.530[f][1]. In this regard, as indicated above, it concluded that “[t]he district did not obtain consent for the FBA until October of 2020 and the FBA was not completed until December of 2020. With respect to the BIP, the state educational agency pointed out that, as indicated above, the district “did not create a BIP but instead incorporated goals from the FBA in the student’s initial IEP.” The state educational agency concluded that “[w]hile the pandemic made the ability to conduct an FBA more difficult, the [d]istrict returned to in-person learning at the start of the 2020-2021 school year’. This being the case, the state educational agency concluded that “[t]he FBA should have been completed as soon as in-person learning resumed and a BIP should have been put into place prior to the December 2020 IEP. As a remedy, the state environmental agency agreed with the district that the student should receive 10 hours of compensatory education, that district staff should receive training, and that a BIP should be provided to the student.

OSEP QA 21-05; August 24, 2021 Subject: Questions and Answers re Child Find and COVID-19.

On August 24, 2021 OSERS issued a letter regarding current federal guidance related to child find.

Among the topics it addressed were a series of questions and answers related to the COV-19 pandemic. 29 The specific questions and answers are set forth below 30: Q-C-1. What are some of the unique challenges for conducting child find when children participate in on-line or virtual learning?

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The balance of the questions deals with “general child find requirement” and “referral and initial evaluation”.

Where appropriate, the answer to questions C-1 and C-2 repeat the referenced language set forth in the answer to question A-5.

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Generally, children who attend virtual schools or, as experienced during the pandemic, receive instruction virtually, do not have the same degree of face-to-face interactions and in-person contacts with a teacher or other school staff as children who attend brick- and-mortar schools on a full-time basis. As such, teachers of these students have limited opportunity for casual observation of a child’s learning abilities and early recognition of issues that may impact their learning. Child find procedures that rely mainly on informal teacher observation and referral may require additional consideration for such children. Where virtual instruction limits or prevents the teacher’s interaction and contact with a child, the SEA and LEA 31 should examine whether existing child find policies and procedures are effective in meeting the State’s responsibilities of identifying, locating and evaluating children who may need special education and related services, such as public awareness campaigns by the LEA or in partnership with a school’s PTA that include information provided in languages spoken in the community and target a wide audience including parents and families, day care and early childhood education providers, summer camps, medical providers, homeless shelters, religious institutions, and kindergarten roundup (i.e., events hosted by elementary schools to facilitate a child’s transition from home to formal education). For older children, activities can include locally administered assessments that measure student academic growth, screening private school students and home school students, meeting with mental health practitioners, sharing information with nonprofit organizations that focus on families and children, and coordinating with State agencies that provide services to children and young adults. Also, the LEA’s outreach efforts and interagency collaboration with housing programs, such as those funded by HUD can help to identify children who are homeless and may be in need of special education. With the increased use of social media, SEAs and LEAs should consider posting child find notices on their websites and social media pages. In general, as child find is an SEA and LEA responsibility, LEAs serving children virtually should not rely solely on referrals by parents as the primary vehicle for meeting IDEA’s child find requirements.

Q-C-2. How might States and LEAs enhance their child find activities during the 2021-2022 school year to address the challenges resulting from educational disruptions due to the COVID-19 pandemic?

SEAs and LEAs should reexamine the efficacy of their existing child find practices and initiate new activities in light of the educational disruptions caused by the COVID-19 pandemic. For example, LEAs may have to conduct additional screenings of children whose academic and behavioral needs may require an evaluation to determine eligibility for special education and related services consistent with 34 CFR 300.304 through 300.311. Additional efforts can be made in increasing awareness of special education supports for students of all ages through coordinated efforts with SEAs, LEAs and associated pubic agencies to highlight the effects of the COVID-19 The acronym “SEA” means State Educational Agency; the acronym LEA means local educational agency see 34 CFR 300.28 and 300.41. See also note 4 to guidance document.

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pandemic on academic performance and social-emotional, behavioral, and mental health needs.

Further, efforts can be made to increase awareness of and access to develop-mental screenings by placing information booths and providing information about the screening process in settings frequented by families (e.g., health departments, physician offices, public parks, amusement parks, shopping malls, and children’s stores), conducting social media campaigns on multiple online platforms, partnering with other stakeholders such as the PTA, or holding screening events in the community. Additional examples of child find activities include public awareness campaigns by the LEA or in partnership with a school’s PTA that include information provided in languages spoken in the community and target a wide audience including parents and families, day care and early childhood education providers, summer camps, medical providers, homeless shelters, religious institutions, and kindergarten roundup (i.e. events hosted by elementary schools to facilitate a child’s transition from home to formal education). For older children, activities can include locally administered assessments that measure student academic growth, screening private school students and home school students, meeting with mental health practitioners, sharing information with nonprofit organizations that focus on families and children, and coordinating with State agencies that provide services to children and young adults.

Also, the LEA’s outreach efforts and interagency collaboration with housing programs, such as those funded by HUD can help to identify children who are homeless and may be in need of special education. With the increased use of social media, SEAs and LEAs should consider posting child find notices on their websites and social media pages.

Q-C-3 If a student has received limited instruction due to educational disruptions as a result of the COVID 19 pandemic and also made little academic progress, should the student be referred for an evaluation to determine eligibility for special education and related services?

Not necessarily. Levels of student performance primarily attributable to limited instruction do not mean the student requires special education and related services under IDEA. IDEA’s child find and eligibility procedures are designed to identify, locate, and evaluate students with a suspected disability to determine whether, as a result of the disability, the student requires special education and related services. IDEA’s regulations in 34 CFR 300.306 (b) specifically state that a child must not be determined to be a child with a disability if the determinant factor is due to a lack of appropriate instruction in reading or math. LEAs must examine individual referrals for special education and should work with families to determine additional general education supports and interventions that can appropriately meet the child’s needs that are attributable to limited instruction as a result of the COVID-19 pandemic and not because the child is suspected of having a disability under IDEA. LEA staff should document these supports when they provide prior written notice to parents under 34 CFR 300.503, explaining the reasons why the LEA will not conduct an evaluation to determine eligibility for special education and related services for their child.

Q-C-4. When a parent shares that their child contracted COVID-19, has “long COVID”, or has other post-COVID conditions, and the symptoms of the child’s condition (such as fatigue, mood 202

changes, or difficulty concentrating) are adversely impacting the child’s ability to participate and learn in the general curriculum, must the child be referred for special education and related services?

Yes. If a child experiencing symptoms from “long COVID” is suspected of having a disability (e.g., other health impairment) and needs special education and related services under IDEA, they must be referred for an initial evaluation to determine the impact of the “long COVID” symptoms and the child’s academic and functional needs.

Note here that the Q and A document includes a number of foot notes setting forth where additional information can be found.

New Mexico Complaint Resolution Report # C2021-05 (Oct. 5, 2020) Dispute: Whether the district complied with its obligations under the IDEA during the COVID-19related school closure in the provision of special education and related services.

Conclusion: The administrative agency determined that the district did not.

Basis of the Administrative Agency’s Decision: The district’s schools were closed from March 16 to the end of the 2019-2020 school year. By executive order on March 26, 2020 the schools were required to provide remote learning for the balance of the 2019-20 school year. The 2020-21 school year began with all students receiving instruction virtually or through a hybrid format.

First, during the spring 2020, school closure beginning in March 2020, special education students unilaterally received a reduction in special education and related services in proportion to the amount of general education services for all students. That being the case, the proportionate reduction of special education and related services was based on the amount of special education and related services that students’ IEPs required. While IEP meetings were held, there was no indication that individualized determinations with respect to whether such a reduction in special education was made or that parents were provided with meaningful participation. While prior written notices were provided, there was nothing that indicated how the reduction of services ensured a FAPE. When the 2020-21 school year began, pre-COVID-19 services were provided to all students online or by hybrid methods. Students were “continually monitored” and such monitoring should have provided information that IEP teams should have reviewed to determine whether the spring 2020 reduction in educational services provided a FAPE or if compensatory education was needed. Second, while the district held IEP meetings prior to the implementation of the school closure-related reduction of services, decisions related to compensatory education were put off until students’ annual IEP meetings, which was a denial of FAPE. The agency concluded that since students were being “continually monitored” and that changes in IEPs were being made on an as needed basis, there was sufficient information available to make appropriate decisions regarding compensatory education. Third, the agency concluded that the proportionate reduction in services disregarded the individualized analysis required by the IDEA and did not meet the district’s obligation to provide FAPE. The agency found that the implementation of the reduction in services prevented parents from effective participation in the 203

development of IEPs and that this also was a violation of FAPE. Further, while the district continually monitored the students and modified IEPs as needed, it failed to determine on an individual basis whether the reduction in services provided FAPE or indicated a need for additional services/supports. The district’s claim that it lacked sufficient data to provide compensatory education services, the agency found, raised the question of whether the students’ IEPs enabled each student to make progress. The agency also concluded that the district had an obligation to monitor students’ progress and modify IEPs as necessary and that such information should allow determinations regarding students’ need for compensatory services at the beginning of the 2020-21 school year.

Application of a Child with a Disability, Appeal No, 20-195 at pp.13-20 Dispute: Whether the student’s unilateral placement was appropriate to meet the student’s needs.

Conclusion: The SRO concluded that the student’s placement was appropriate to meet his needs and provided him with specially designed instruction.

Basis of the SRO’s Decision: The SRO reviewed the hearing record to identify the student’s needs. Based on the information in the record, the SRO determined that the student had needs relating to self-stimulating, aggressive, non-compliant behaviors, and elopement; pre-academic skills; was non-verbal and required the use of an augmentative and alternative communication (AAC) device to effectively communicate; community skills; activities of daily living; speechlanguage, including receptive and expressive language; and occupational therapy (OT) for improvement in the student’s gross motor skills. A student progress report dated December 2019 set forth that the student needed an appropriate learning environment including “consistent, predictable, highly structured environment using ABA with 1:1 instruction” systematically taught through ABA”. Regarding this, testimony indicated that the student could follow numerous “one-step” instruction but that “two-step” instruction was very challenging and required direct instruction.

The SRO concluded that The Keswell School (Keswell) addressed the student’s identified special education needs. In particular, the hearing record showed that Keswell was “a therapeutic and educational model for children with Autism Spectrum Disorder (ASD) that integrates ABA, Speech therapy and Occupational therapy. The school day runs from 8:45 am to 4:45 pm. The student received 1:1 instruction in a class of five students between the ages of 7-9. Among other things, Keswell provided the student with ten, 45-minute periods and one 30-minute period each day.

Additionally, the school provided the student with individual OT four times per week as a pullout service and also once per week pushed-in service a small group. The student also received speech-language therapy once a day for 45 minutes as a push-in service and also physical therapy-related activities. The school assessed the student’s behavior and developed “behavior reduction plans” to address the student’s interfering and other behaviors. Additionally, the school provided the parents with suggestions on what they could do at home to assist the student in the learning process both during remote instruction and other work.

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With respect to the district’s claim that Keswell was inappropriate because its instructors were not Board-Certified Behavior Analysts (BCBAs) or Licensed Behavior Analysts (LBA), the SRO noted that, and citing to Florence County Sch. Dist/ Four v. Carter, 510 U.S. 7, 13-14 (1993), that “it (was) well established that a private school need not employ certified special education teachers in order to be an appropriate unilateral placement. In this case, the student’s classroom supervisor held a master’s degree in special education. The student’s head teacher was pursuing a master’s degree in special education and her BCBA. Additionally, one of the ABA therapists in the student’s classroom held a New York State certification for special education, another held a bachelor’s degree and was pursuing certification as an RBT, the third had a master’s degree in special education and was pursuing her BCBA, and the fourth held a bachelor’s degree. The student’s speech-language therapist and Occupational therapist were both certified.

Regarding the district’s claim that the parents’ unilateral placement at Keswell was not appropriate because it did not provide the student with instruction specially designed to meet his unique needs, the SRO concluded that, while some aspects of the program at Keswell were the same for all students, the testimony also showed that the content of the student’s educational program such as goals and objectives and the student’s educational plans were specific to his needs.

With regard to the COVID-19 pandemic, on or about March 16, 2020, the student had a “remote learning plan” and also worked on work packets that were sent home for him to use. From March to the end of the 12-month school year, the student received remote instruction and “zoom” sessions. The parents received parent training, also remotely. The student’s instruction was done through computers and more specifically by a laptop, an iPad and/or an iPhone. The school’s remote programing included 1:1 direct instruction with the parents or his brother sitting with him during the live sessions. Keswell staff worked closely with the parents and provided them with training in order to maximize the student’s learning inside and outside of his remote sessions. Regarding the student’s remote sessions, the student received four to five 30-minute sessions per day and one 15-minute session per day. Speech and occupational therapy took up two of the student’s four to five daily sessions. The associate director was also involved in the student’s remote learning and she met weekly with the student’s classroom supervisor.

Provision of Educational Services: L.V. v New York City Dep’t of Educ., No. 19CV-05451 (AT)(KHP) 2020 WL 6782234 Dispute: The level and type of services required during COVID. Conclusion: The district is required to provide in-school services to the student if that could be done safely and in compliance with guidance from health authorities. Additionally, an independent assistive technology evaluation should be conducted to assess the student’s individual needs and the software required to deliver the student’s services remotely if they could not be provided safely in person.

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Basis of the Court’s Decision: The Court, among other things, ordered that the student’s (whose parent asserted his disability was autism) pendency placement include “in-person services” described in the IHO’s pendency order “to the extent such can be done safely during the current COVID-19 pandemic and in compliance with guidance from health authorities” and that the Department “immediately conduct an independent assistive technology evaluation to assess the student’s individual needs and the software required to deliver the student’s required services remotely, if they cannot be provided safely in person during the pandemic” (see Dec. at *1).

SETSS Services at Home: Application of a Student with a Disability, Appeal No. 20-122 (Sept. 17, 2020) Dispute: Whether SETSS services should be provided at home during COVID. Conclusion: The SRO held that SETSS services at home should be provided during COVID. Basis of the SRO’s Decision: Both parties appeal from the IHO’s determination that the district should not pay for SETSS at the student’s home for any services after COVID-19” because SETSS was for support in the classroom and not at home”.

The SRO held that the hearing record did not support the IHO’s determination that the student no longer received any instruction that could be supported by SETSS. The SRO pointed out that after the student’s school closed in March 2020, the school continued on-line work. The SRO also pointed out that the SETSS provider testified that she provided the student with 10 hours a week of instruction and that she “worked around the student’s school schedule” in arranging the SETSS services.

The SRO also relied on state and federal COVID policy documents. The SRO pointed to federal guidance that provided that “(i)f an LEA continues to provide education opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE… [and further] SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA. The SRO also pointed to State guidance that set out the following: FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students.

During this emergency, schools may not be able to provide all services in the same manner they are typically provided and to the greatest extent possible, each parentally placed nonpublic school student can be provided the special education and related services identified in the student’s individualized education

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services plan on an equitable basis as compared to other students with disabilities enrolled in the public school with an IEP. The SRO concluded that “as the district was responsible for the student’s IESP during the period of time the schools were closed due to the Covid-19 pandemic and, as with the rest of the school year, there is no indication in the hearing record that the district fulfilled this obligation”, the IHO’s determination to exclude from relief the period of time that schools were closed because of Covid-19, the IHO’s decision “must be overturned”.

Pendency Placement – Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Whether the NYC Department of Education and Chancellor Carranza (DOE) should make payments for certain school-related services at or related to students’ pendency placements at the International Institute for the Brain (iBRAIN) including special transportation and nursing services since the start of the COVID-19 pandemic in March 2020 and that at least part of which were reimbursements to iBRAIN. The parents assert that payment for such services should be made. DOL argues that prior to payment for such services it has the right to be provided with specification, documentation and additional information.

Conclusion: The Court ordered the parties to report to it regarding “(1) the history of communication between the Plaintiffs and DOE; (2) the information requested by DOE (3) the information provided by Plaintiffs in response to DOE’s requests; (4) DOE’s rationale for finding such information inadequate; (5) Plaintiff’s rationale for failing to provide any additional information requested by DOE.” Basis of the Court’s Decision: The Court indicated that it drew “a clear distinction between having pendency funds completely cut off and undertaking an administrative process – including providing information – to receive that funding. Plaintiffs have a right [it said] to the IDEAguaranteed pendency funding; they do not, however, have a right to a blank check. That is, they are not entitled to receive that funding in whatever manner they desire, irrespective of reasonable documentation requirements of the DOE”.

Prospective Relief: Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request.

Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”.

Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 207

2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding.

Tuition Reimbursement Equitable Considerations: Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) Dispute: The parents assert that equitable considerations support their tuition reimbursement claim. The district disagrees Conclusion: The SRO concludes that equitable considerations support the parents’ claim for tuition reimbursement.

Basis of the SRO’s Decision: The SRO concluded that “at all times the parents cooperated with the CSE process” and that no “minor irregularities” rose to “the level of non-cooperation or violation of procedural requirements”. Regarding Covid, the SRO concluded that even though the student returned home from the residential; school because of the pandemic, the student “continued to receive many of the special education supports, services, and individualized instruction to meet [the student’s] unique needs through Middlebridge’s (MDS) remote learning program.

COMMITTEE ON SPECIAL EDUCATION (CSE) NOTICE Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Were the notices of the CSE meeting properly issued.

Conclusion: While some were technically inadequate, they did not deny the student a FAPE. Basis of the Court’s Decision: In this case, the district initially issued a notice dated February 4, 2019, for a March 8, 2019 CSE meeting. That meeting notice would have been in compliance with the annual CSE meeting review date. The Court pointed out that the March 8, 2019 CSE meeting did not proceed as scheduled because, in response to this notice, the parents requested a “full” CSE meeting with a district physician and a parent member present and that both should participate in person. The parents also advised the district that they were available for a CSE meeting during the work week 208

from 9 am to 11:00 am. In response to this, the district issued a second notice dated March 27, 2019, rescheduling the CSE meeting to April 9, 2019 at 10:30 am. The parents then wrote the district and requested that the meeting be rescheduled as they had not received the mailed copy of the meeting notice and the notice did not list the names of either the physician member or the parent member. In response to this, the district issued a third meeting notice on April 23, 2019, rescheduling the CSE meeting to June 7, 2019 at 9:00 am. The parents wrote to the district on May 20, 2019, alleging “a several-day delay in receiving the April 23 letter”. The CSE meeting proceeded on June 7, 2019.

The parents in this case make a number of arguments regarding the notices in this matter.

The parents first argue that an April 23, 2019 notice of a June 7, 2019 CSE meeting was untimely in that “the CSE meeting was held four months beyond the mandatory February 12, 2019 date, thus depriving the student of a FAPE”. The Court said that while the reason for the parents’ claim that the notice was issued late was unclear, it appeared that the parents were arguing that the CSE meeting was required to be held prior to March 14, 2019 which was a year after the prior year’s annual review meeting on March 14, 2018.

The Court held that “the delay in holding the CSE meeting did not result in a denial of a FAPE”.

The Court said that the original February 4, 2019 notice for the March 8, 2019 CSE meeting came before the anniversary date of the March 14, 2018 CSE meeting. The Court also held that “[a]ny delay past the original March 8, 2019 meeting date was for the convenience of the parents, who twice requested that the meeting be rescheduled”. The Court concluded that “[e]ven if arguably a statutory violation, [the] delay would not represent a denial of a FAPE” and cited S.Y. v. New York City Dep’t of Educ., 210 F. Supp. 3d 556, 567 (S.D.N.Y. 2016).

The parents also claim that the March 27, 2019 meeting notice was “deficient” in that it did not include the names of the physician and parent members. The Court pointed out that State regulation required that the meeting notice include the name of the members of the CSE. See 8 NYCRR 200.5(c)(2). The Court, while concluding that this was “perhaps a technical deficiency in the meeting notice, this deficiency was corrected before the meeting and the parents [had] not identified how the deficiency impacted either their son’s right to a FAPE or their right to participate in the process of formulating his IEP,” citing to Carrillo v. Carranza, 2021 WL 4137663, at *14 (S.D.N.Y. Sept. 10, 2023).

The parents further claim that the district violated IDEA regulations in that the district “failed to provide prior written notices [see 20 U.S.C. 1415(b)(3)(A); 34 CFR 300.503], before sending the February 4, 2019 and April 23, 2019 CSE meeting notices”. The Court held that the district was not required to send a prior written notice before issuing these notices. The Court explained that this was because, “a prior written notice need only be provided when the agency takes or refuses to take an action with respect to the educational placement or FAPE” [see 8 NYCRR 200.5(a)(1)], and that this was not that case but a case where “the meeting notices were sent to schedule a

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meeting related to the development or review of a Student’s IEP, or the provision of a [FAPE} to the to the student”.

The parents finally claim “that their ability to participate in the CSE meeting was constrained because the [district] made no attempt to schedule the [CSE] meeting at a mutually agreed on time and place as required by the IDEA.” See 34 CFR 300.322(a)(2); 8 NYCRR 200.3(a)(1)(ii). The Court found that the district complied with this requirement and that the “record shows that the district attempted to accommodate the parent[s] by soliciting preferred dates or times, cancelling several CSE meetings, responding to the parent[s’] concerns, and rescheduling the meeting”. In particular, the Court pointed to the fact that the district “rescheduled the [CSE] meeting twice and accommodated the [p]arents’ request that the meeting occur on a weekday between 9:00 am and 11:00 am.” The Court also noted that the parents attended the June 7, 2019 CSE meeting.

PARENT PARTICIPATION T.C. v. William Floyd Union Free Sch. Dist., 774 F.Supp.3d 583 (E.D.N.Y. 2025) Issue: CSE – Parent Participation Dispute: Did the District provide the parent with the ability to meaningfully participate in the CSE process Conclusion: The District Court determined that the parent meaningfully participated in the CSE process.

Key Take Away: A parent’s claim that she has been denied the opportunity to meaningfully participate in the CSE or IEP process will not be successful if the district has given the parent the opportunity to participate or if the parent did in fact participate in that process and if the district responded in a good faith manner.

Reasoning: The student is 15 years old and has been diagnosed with Specific Learning Disorders and Attention Deficit/Hyperactivity Disorder.

The CSE met in May 2021 for an annual review for the 2021-2022 school year. At that meeting both the parent and representatives of the private school that the student was attending were given the opportunity to participate in the CSE meeting and did participate in that meeting. In a letter dated August 16, 2021 the parent advised the district that she disagreed with the CSE’s recommendations, that she was enrolling the student in a private school and was seeking tuition and transportation costs due to substantive and procedural denials of a FAPE. In response to the parent’s letter, the district made arrangements for the parent to visit the district’s proposed school and scheduled the CSE to meet again on September 14, 2021. The parent wrote the 210

district again on December 3, 2021. As a result of this second letter, the district scheduled a further CSE meeting in January 2022.

The parent filed a Due Process Complaint on December 6, 2021. The complaint said that the district failed to provide the student with a FAPE and included claims of “predetermination” and the absence of parental participation. The impartial hearing began in March 2022 and ended in April 2022. During the hearing, the parent said that the district failed to meaningfully rely upon or consider the information provided by the student’s private school. The district disagreed and said that the CSE relied on a recently completed reevaluation and updated information from the private school. The IHO concluded that the district failed to provide the student with a FAPE. However, it did not address the parent’s concern that the IEP was predetermined and that she was denied a meaningful opportunity to participate in the IEP process.

The district appealed the IHO’s decision to the SRO. The parent cross-appealed the fact that the IHO did not address the issue of predetermination and parental participation in the CSE process.

The SRO pointed to the fact that the parent testified at the impartial hearing that she was given the opportunity to discuss the student’s evaluations and was able to raise her concerns about different district recommendations; that she “fully participated” in the CSE’s; and that in response to the parent’s August and December 2021 letters of concern, the district scheduled additional CSE meetings. The SRO also pointed to evidence considered by the CSE in formulating its recommendations. The SRO also pointed out that the hearing showed that the parent’s preference for a private school was understandable but that the district was not required to consider placement of the student in a private school once it determined that a less restrictive placement was appropriate to address the student’s needs. The SRO denied the parent’s claim.

The parent started a lawsuit in the United States District Court for the Eastern District of New York in November 2022. In that lawsuit, the parent continued to say that the district’s proposed program was predetermined and that the parent did not have a meaningful opportunity to participate in the IEP process. The parent said that the district did not have an “open mind” regarding the appropriate program but “was driven solely by its nonavailability of a smaller sized class for those on an academic track”. The district disagreed and said that it had offered the student a FAPE. The District Court concluded that the parent’s position was “unavailing” and referred to the fact that the parent’s position had been rejected both by the IHO and the SRO. She specifically pointed to the SRO’s decision. The parent said that her two letters proved her claim but the District Court said that this was not the case and pointed out that the district reconvened the CSE after receipt of each letter, The parent also asserted that the hearing testimony supported her position. The District Court reviewed this and concluded that the testimony “underscored” the parent’s participation in the matter.

Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: committee on special education – parent participation 211

Dispute: should the CSE have proceeded without the parents being at the CSE meeting Conclusion: The Second Circuit concluded that the District Court was correct that the parents’ failure to attend the CSE meeting was not a denial of a FAPE. Key Take Away: Parents should remember that they are not required to be in attendance at a second CSE meeting when they have actively participated in the first CSE meeting, had no objection to that first IEP and where that IEP contains the “material recommendations” of the student’s program.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

The CSE met in March 2021 and developed an IEP for the student for the 2021-2022 school year.

There is no dispute that the parents attended and actively participated in this CSE meeting.

Further, there is no dispute that the parents believed that this IEP was adequate except for the district’s recommendation to assign the student to a particular district school. The CSE met again in August 2021. The resulting IEP was “largely equivalent” to the original March 2021 IEP. It only modified the March IEP by changing the student’s special education classification to traumatic brain injury and in its recommendations for assistive technology. The parents did not attend this CSE meeting. After the district notified the parents of the student’s assigned school, the parents re-enrolled the student at the private school that the student had been attending since March of 2020.

The parents submitted a due process complaint in October 2021. The complaint asserted that the district denied the student a FAPE for a number of reasons including that the parents were denied the ability to meaningfully participate in the IEP process when the district held the August 2021 CSE meeting without the parents being present. The Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents.

The district appealed to a State Review Officer (SRO). In a 27-page decision, among other things, the SRO “explicitly considered [the parents’] procedural and substantive objections” and found that the district provided the student with a FAPE. The parents filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to find in their favor. The parents argued that their absence from the August 2021 CSE meeting was a procedural violation that denied the student a FAPE. The District Court ruled in favor of the district. It concluded that the parents’ absence from the August 2021 CSE meeting did not constitute a procedural violation because, given their participation in the March 2021 CSE meeting, they had been able to meaningfully participate in the IEP process and that the student had been provided with a FAPE and that therefore the 212

parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

The parents requested that the District Court change its mind. The District Court declined to do so. The parents therefore appealed the decision of the District Court to the United States Court of Appeals for the Second Circuit. The parents argued in that Court that the district “violated IDEA procedures” by developing the student’s August 2021 IEP without the parents being present.

The Court of Appeals did not agree. The Appeals Court reviewed the two IEPs. It concluded that the August 2021 IEP was “largely equivalent” to the March 2021 IEP. It also pointed to the fact that the parents did not dispute that they participated in the development of the first IEP, which contained the IEP’s “material recommendations”. The Appeals Court concluded that because of these factors, the absence of the parents from the August CSE meeting “did not significantly impede the [the parents’] ability to participate in the IEP decision-making process”.

The Court of Appeals determined that the district court correctly held that the fact that the parents did not attend the second CSE meeting did not significantly impede the parents’ ability to participate in the CSE’s decision-making process.

Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) Issue: CSE- Parent Participation Dispute: Were the parents provided a sufficient opportunity to take part in the CSE meeting.

Conclusion: The District Court concluded that the parents were provided a sufficient opportunity to take part in the CSE meeting.

Key Take Away: A parent cannot claim that the district did not schedule a CSE meeting at a time mutually agreeable to the parents when the district made efforts to notify and accommodate the parents including rescheduling the CSE meeting on at least one occasion.

Reasoning: The student has been diagnosed with cerebral palsy and a seizure disorder. He cannot speak or walk. The student needs help in all areas of mobility and activities of daily living.

In early 2018, the CSE met to discuss the student’s IEP. The parents did not attend the meeting, arguing that the district did not schedule a meeting to discuss the IEP at a time mutually agreeable to the parents. In July 2018, the student’s parents filed a due process complaint, which included the claim that the district did not hold the meeting at a mutually agreeable time. It also asked that the district schedule another CSE meeting. The impartial hearing officer (IHO) reviewed what had happened and pointed to the fact that the district made efforts to notify and accommodate the parents including rescheduling the CSE meeting on at least one occasion. The IHO denied the parents’ claim. The State Review Officer (SRO) reviewed the IHO’s decision. She concluded that the parents requested to reschedule the CSE meetings several times and that the CSE agreed with their requests.

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The District Court concluded the SRO’s findings were “sensible reasoned and based on a thorough review of the [facts presented at the impartial hearing].” It agreed with the SRO that the district offered the student a free appropriate public education (FAPE).

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Was the failure of the district to schedule a CSE meeting at a “mutually agreeable time and place” a violation of a FAPE. Conclusion: The failure of the district to schedule a CSE meeting at a “mutually agreeable time and place” was not a denial of a FAPE. Basis of the Court’s Decision: In this case, the student “has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living”. “The student communicates only through vocalization, facial expressions, body movements, and eye gazing”. He is “incapable of learning on a typical academic trajectory”. At the time of the proceeding the student was sixteen or seventeen years old.

The district held a CSE meeting in March 2021. At that meeting, the CSE developed the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a particular district 75 public school, enroll in a 12-month program in a 6:1+1 special class, and receive extensive related services in occupational therapy, physical therapy, speech-language therapy, vision education services as well as full-time individual health paraprofessional services. The parent(s) attended this meeting.

In a letter dated June 23, 2021, the parents advised the district that they disagreed with the IEP’s recommendation to place the student in the District 75 school and of their intent to unilaterally enroll the student in a private school. The parent signed a contract with the private school on July 2, 2021.

The IEP was amended in August 2021 to add an individual assistive technology device. The parents did not attend this meeting and said that they were not aware of it. They also said that the email meeting notices went to one of the parent’s “junk” email folders. According to the district, “once the August meeting was in progress, [the district] called and emailed [the parent] to invite him to participate”.

The parents requested a due process hearing in October 2021 that the district had denied the student a FAPE and of their intent to enroll the student in a private school. The due process complaint raised the issue of whether the parents’ ability to meaningfully participate in the August CSE meeting was violated.

The IHO found that the district did not provide the student with a FAPE, and that the equities favored the parents’ request for funding. The appropriateness of the student’s private school program was not disputed.

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The district appealed to the New York State Review Officer (SRO). Among other things, the SRO found that the district provided the student a FAPE. The parents appealed the SRO’s decision to federal court. In its decision, the Court characterized the parents’ claim as a “procedural violation” of the IDEA which did “not automatically entitle a student’s parents to tuition reimbursement; rather, such violation must impede the child’s right to a free appropriate public education, significantly impede the parents’ opportunity to participate in the decision-making progress, or cause a deprivation of educational benefits”.

The Court pointed out that the parent’s ability to participate in CSE meetings was required by the IDEA, its implementing regulations, and the New York Education Law. The Court determined that “at a minimum” the August 2001 CSE meeting was not scheduled at a mutually agreed upon time and place between the district and the parents. (See 34 CFR 300.322[a]). As indicated, the Court found this to be a “procedural” violation of the regulations. The Court pointed out that the SRO had concluded that the procedural violation did not deny the student a FAPE because the “changes” made to the IEP during the August 2021 meeting “were relatively inconsequential” and that the parents “actively participated in the March 2021 meeting at which the majority of the program recommendations” for the student were made. With that in mind the Court concluded that the parents’ ability “to participate in the decision-making process was therefore not significantly impeded by their nonparticipation in the August meeting” and that “[f]or this reason the student could not have been denied a FAPE”. To reach this point, the Court determined that “in. light of the deference owed to the SRO’s decision” it should credit the SRO’s “assessment of the import of [the student’s] absence from the August meeting in light of the nature of the changes made to the 2021-22 IEP during that meeting.

Accordingly, the Court affirmed the SRO’s conclusion that the student had not been denied a FAPE.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the parent meaningfully participated in the CSE meeting.

Conclusion: The Court held that the parent meaningfully participated in the CSE meeting.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserts that she was not provided with an opportunity to meaningfully participate in a reconvened CSE meeting because notwithstanding her request by letter in April 2018 one was never convened. The Court pointed out and agreed with the SRO “that the hearing record was 215

not clear as to whether the district was provided appropriate notice of the parent’s request for a reconvene[d] meeting”. Moreover, the Court concluded that the SRO “correctly found” that even if the district had received and ignored her letter, that the “March 2018 CSE meeting had already timely occurred and [the parent] had participated fully in that meeting”. Regarding this, the Court advised that the parent “had a nearly four-hour long meeting with [staff of the private school the student was then attending] and sufficient information about the student and also that [the parent] had not objected at the March 2018 CSE meeting to the district’s physician not being present.

With the above in mind, the Court found that “the failure to reconvene [was] not a procedural inadequacy that [rose] to a denial of a FAPE”.

T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) Dispute: Whether the district denied the student a FAPE by refusing to discuss bullying with the student’s parents despite their reasonable concern that the severe bullying that the student endured could prevent her from receiving a FAPE. Conclusion: The Circuit Court held that the district denied the student a FAPE by refusing to discuss bullying with the student’s parents despite their reasonable concern that the severe bullying that the student endured could prevent her from receiving a FAPE. Basis of the Circuit Court’s Decision: “[T]he IDEA requires States to provide parents with the opportunity to participate in the decision making process regarding the provision of a FAPE to the parents’ child”. 20 U.S.C. 1415(f)(3)(E)(ii).

In order for there to be a violation of a FAPE, this and other procedural violations of the IDEA must “significantly impede the parents’ participation rights, impede the child’s right to a FAPE, or cause a deprivation of educational benefits”.

Because the Circuit Court had not discussed the issue before, and because the district conceded that bullying “can be an appropriate consideration when it reaches a level where a student is substantially restricted in learning opportunities”, the Court assumed as much without deciding.

The Court also gave a nod to the United States, an amicus to the appeal, which had said “that bullying can interfere with a disabled student’s ability to receive a FAPE”.

The Circuit Court concluded that the district “denied [the student] a FAPE by violating her parents’ procedural right to participate in the development of her IEP”. The Court pointed out that “[a]t two separate meetings, both of which were integral to the development of [the student’s] IEP [the parents] sought to discuss bullying but school officials refused to do so”.

According to the Circuit Court, the “undisputed record evidence confirms that in asking to speak with the officials about the bullying, [the students’] parents had reason to believe that the bullying would interfere with [the student’s] ability to receive meaningful educational benefits 216

and could prevent [the student’s] public education from producing progress, not regression.”

“For example [a staff member assigned to the student] reported that bullying negatively affected [the student’s] ability to initiate, concentrate, attend, and stay on task with her homework assignments and activities after school”. Additionally, there was “undisputed evidence that [the student] dreaded going to school, counted the days until the end of school, and was frequently tardy arguably due to her fear of being bullied”. The student’s father testified that the student was “emotionally unavailable to learn” and that “she came home crying and complaining about bullying on a near daily basis.” Further, three of the staff assigned to help the student “confirmed that [the student] was constantly teased, excluded from groups, and subjected to a hostile environment”. Moreover, “a doctor familiar with [the student] testified that [the student’s] her classroom behavior and demeanor had regressed from the prior year”. The Court further said that “given the school’s lack of cooperation about the bullying, [the parents] could not reasonably be confident that they had been informed about the full scope of the bullying or its effects on [the student]”.

The Court found that “[t]he Department’s persistent refusal to discuss [the student’s] bullying at important junctures in the development of [the student’s] IEP significantly impeded [the parents’] right to participate in the development of [the student’s] IEP … that constituted a procedural denial of a FAPE. “The [district] argued that the [parents] suffered no harm arguing that the student’s IEP already discussed bullying as it included goals for improving the student’s behavior that might reduce further bullying … and that some anti-bullying strategies are better addressed through channels other than the IEP”. The Court was clear that it was “not persuaded” and that “[d]enying [the student’s] parents the opportunity to discuss bullying during the creation of [the student’s] IEP not only potentially impaired the substance of the IEP but also prevented them from assessing the adequacy of their child’s IEP”.

The Court concluded that “the parents’ were reasonably concerned that bullying severely restricted [the student’s] educational opportunities and that concern powerfully informed their decisions about [the student’s] education. By refusing to discuss that bullying during the development of the IEP, the [district] significantly impeded [the parents’] ability to assess the adequacy of the IEP and denied [the student] a FAPE”.

A.D. v. District of Columbia, Civil Action No. 20-cv-2765 (BAH), 2022 WL 683570 (D.D.C. Mar. 8, 2022) Dispute: Whether the parents meaningfully participated in the development of the student’s IEP. Conclusion: The Court held that the parents meaningfully participated in the development of the student’s IEP. Basis of the Court’s Decision: “Procedural inadequacies significantly impeding the parents’ opportunity in the decision-making process regarding the provision of a free appropriate public 217

education may amount to a violation of IDEA. 20 U.S.C. Section 1415(f(3)(E)(ii).” “[P]arental involvement in the IEP process is central to the statutory scheme. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 205 (1982); Endrew F. v.

Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).”

In this case, the parents assert that the district failed to allow them to participate in the IEP development process and that the hearing officer failed to consider that failure.

The Court determined that the parents “had substantial opportunity to participate – and did participate -- in the November 2019 IEP meeting”. The Court pointed to the fact that the student’s “parents and seven of their representatives, including their counsel, attended the November 2019 CSE meeting, during which they were able to provide feedback about [the district’s] proposals and voice their concerns to [the district’s] staff”. Additionally, based on parental “feedback”, “[o]ccupational therapy services were subsequently added to the IEP”.

Further, the student’s mother testified that in the impartial hearing “we tweaked a lot of the goals…particularly a lot of the math goals”. Further, it was the parents’ neighborhood school [that] was selected as a possible location for the implementation of the November 2019 IEP and moreover the student’s parents could “go in and see and talk to the school at any time”.

Following this, the Court said that the parents “enjoyed substantial participation in the form of a guided visit to [that school]”.

Mr. and Mrs. O v Glastonbury Bd, of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691, at *5, *8-*12 (D. Conn. Dec. 29, 2021) Dispute: Whether the district violated the parents’ right to meaningful parent participation and predetermined the student’s educational placement.

Conclusion: The Court determined that the record supported neither the district nor the parents and remanded the matter to the hearing officer for additional findings.

Basis of the Court’s Decision: Among other things, the parents asserted that the district denied them meaningful participation at the January 30, 2019 IEP Team meeting and that at that IEP Team meeting predetermined the student’s recommended placement. The hearing officer found that the parents “participated in the process and their views were taken into account, as the evidence demonstrated that the student’s parents attended the [IEP team] meetings involved in developing the 2019 IEP and were represented by counsel”. And further, that in the absence of consensus at an IEP meeting, as was here, the district “was responsible for the choice of a special education placement”.

Regarding predetermination, the hearing officer concluded that the district arrived at its recommended program after considering a “multidisciplinary evaluation” and retaining the services of a feeding consultant as “a component of the [district’s] planning to meet the student’s needs”.

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The Court cited to case law that parental participation “involves more than mere presence” at an IEP Team meeting but requires that the parent be given “the opportunity to be an equal collaborator” in the IEP Team process. With respect to the predetermination of a student’s placement or program, the Court said that such was “inconsistent with the goals of the IDEA” which, as indicated above, requires that the parent and the district be collaborators in the IEP process. Regarding predetermination, the Court set out that the district “cannot predetermine the contents of an IEP in advance of a [IEP Team] meeting”. And further, that “[p]redetermination is a procedural violation of [the IDEA] and may rise to the level of a substantive harm and therefore deprive the [student] of a FAPE where the child’s parents are effectively deprived of meaningful participation in the IEP process”. However, the Court pointed to case law and regulation that allows the district to engage in “preparatory activities that fall short of a pre-meeting agreement” as to what the IEP must contain.

The Court said that “ordinarily” it would defer to the hearing officer’s findings related to predetermination and parental participation. However, the Court found that the hearing officer “did not analyze the record to determine whether the [p]arents had an opportunity for meaningful participation” in the IEP Team meeting or “whether the [district] predetermined the Reviewing hearing officer findings ostensibly relating to [s]tudent’s placement”.32 predetermination and parent participation, the Court concluded that while such might have been “potentially relevant” to whether the proposed program was substantively appropriate, they were “inapposite to the procedural inquiry of whether there was a pre-meeting agreement as to the [s]tudent’s placement or whether the [p]arents’ views were appropriately considered in the [IEP] Team meeting process”. The Court also pointed to the fact that the “record revealed” that two of three letters from the student’s physicians regarding the student’s placement “were not read, much less considered or discussed” at the IEP Team meeting. As a result, the Court found that the hearing officer’s decision was “not supported by a preponderance of the relevant evidence” and that deference should not be given to it. The Court further found that its “independent review” of the hearing record “[did] not reveal that the [district] engaged in mere preparatory activities” but that there was “substantial evidence in the record to suggest that district staff agreed to alter the [s]tudent’s placement before the multidisciplinary evaluation and [IEP Team] meeting, thereby impeding parental participation”. The Court held that the “facts in the administrative record, which are not addressed by the [h]earing [o]fficer’s decision, preclude judgment as a matter of law to the [district] as to procedural compliance with the IDEA, at least as to the alleged predetermination of placement and denial of meaningful parental participation”. At the same time, the Court also held that it “lack[ed] a basis on which to grant As indicated herein, the Court looked beyond the district’s contentions that it provided “copies of the completed evaluations” to the parents, “provided adequate notice of the [January 2019 IEP Team] meeting”, “provided draft goals and objectives for [the parents] to review” before the January 2019 IEP Team meeting, “attended the [January 2019 IEP Team] meeting with an attorney”, “were offered the opportunity to ask questions about the evaluations and proposed goals and objectives”, “asked questions”, “offered three physician letters”, and “expressed their clear and immediate disagreement with the proposed placement”.

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judgment as a matter of law to the [parents]” because “the cases where procedural violations have been so egregious so as to entitle parents to relief exceed the facts alleged here”. Regarding this, the Court concluded that it “therefore cannot determine on the record before it, that the alleged predetermination and denial of parental participation – or indeed any other procedural violations 33 that may have occurred, in isolation or in aggregate -- were so egregious as to entitle the [p]arents to relief as a matter of law”.

The Court denied the parties’ cross-motions for summary judgment and remanded the matter to the hearing officer “for additional findings”.

B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) Dispute: Whether the district significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child during the 2013-14 and 2014-15 school years and whether it predetermined the student’s placement at its October 1, 2013 meeting.

Conclusion: The Court concluded that the district significantly impeded the parents’ opportunity to participate in their son’s educational planning during the 2013-14 school year (July 16, 2013 to July 29, 2014) which denied the student a FAPE during this period of time. As a consequence, the Court remanded the matter to the hearing officer for a determination of the appropriate amount of compensatory education due. The Court also found that the district did not predetermine the student’s placement at its October 1, 2013 meeting.

Basis of the Court’s Decision: As an initial matter, the Court averred that “as the Supreme Court has repeatedly emphasized, the central importance of parental participation in the creation of educational programs under the IDEA cannot be gainsaid”. 34 The Court went on to say that “not every minor procedural error on behalf of a school board results in the denial of a FAPE”. And further, where the issue is one of the “deprivation of the parental right to participate, [parents] must show that the procedural violation significantly impeded that right in order to show a FAPE denial”.

The IEP [T]eam scheduled a meeting for June 21, 2013. Because of a conflict on the part of the district, the meeting was rescheduled for July 16, 2013. Prior to the meeting the parents advised the district that the student been accepted at a private residential school and that “they intended to enter [the student] in that program as soon as space became available” 35 In response to that, The parents also alleged a number of other violations, styled as procedural, including “removal of programming” in areas of specified need, “failure to develop measurable IEP goals”, and “inaccurate designation of service hours”.

34 The Court cites to Honig v. Doe, 484 U.S. 305, 311 (1988) and Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist v. Rowley, 458 U.S. 176, 205-06 (1982).

33

The student is classified as a student with multiple disabilities. His conditions include an extreme form of attention deficit hyperactivity disorder, developmental coordination disorder, anxiety disorder with obsessive compulsive features, and a variety of other learning disorders.

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the district wrote to the parents and advised them that the district was “not required to, nor will it propose a revised IEP while the student is unilaterally placed” by the parent at the private school. On July 15, assuming that the district would be proceeding with the July 16, 2013 IEP Team meeting, the district “circulated a dial-in number and location for the meeting.” After receipt of the letter, the parents advised the district that they would “very much like to attend the IEP [Team] meeting”, but that they had believed from the district’s earlier letter and the district’s failure “to provide an agenda, a list of participants, and other information” that the meeting “had been cancelled". The parents also advised the district that because they had believed that the meeting “had been cancelled they had not made the necessary childcare arrangements, preventing them from attending on short notice”. This was followed up the next day by an email from the parents’ attorney “reiterating [the parents’] inability to attend and again requesting [the district] to reschedule the meeting”.

The district determined to proceed with the July 16, IEP Team meeting notwithstanding that the parents were not able to attend. “The meeting minutes state that the need to remain in compliance with the requirement that IEPs be updated at least annually was the reason for moving forward in the [parents] absence.” The notes of this annual review meeting make clear that, among other things, “updates to the student’s goals were impossible to make because the IEP [T]eam lacked current information regarding [the student’s] behaviors and progress”. On or about July 19, 2013, the district issued a placement notice placing the student in a private therapeutic residential school and which the district had previously identified for the student on or about October 2012.

Upon agreement as to time and place, the IEP team reconvened on October 1, 2013. “The agenda for the meeting included review of new data and recommends (sic) for updated social emotional goals, review of recommended placement, and opportunity to discuss additional concerns or questions”. The agenda “did not include a plan to review goals outside of the social emotional category. During the meeting, the IEP Team “discussed [the student’s] recent hospitalizations and a recent behavioral incident report” The IEP Team “reviewed [the student’s] psychiatric health and social-emotional goals as well as his proposed placement at [the districtidentified private therapeutic residential school]” “At the end of the meeting, [the district] reiterated its recommendation that the student be placed” at that private school and “set a proposed date for his placement” there. The parents and their attorney reiterated their own objections “and rejected the proposal”. “[A]n amended IEP dated October 4, 2013, “stated that [the district] amended [the student’s] present performance levels and annual goals in a single area of concern – the social— emotional—behavioral area.” “A few days later [the district] sent [the student’s] parents a Prior Written Notice identifying [the student’s] placement as [the district-identified private school] and noting that the [student’s parents] had rejected that placement.”

The IEP Team met again on July 29, 2014 for an annual review. The district prepared a draft IEP which it circulated prior to the meeting to some members of the IEP Team but not to the parents.

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“During the meeting, the draft IEP was projected on a screen visible to all [IEP] [T]eam members”.

The parents received a copy of the draft IEP at the time of the meeting.

With respect to the July 16, 2013 IEP Team meeting, the Court concluded upon review that the district “failed to comply” with relevant federal regulations at 34 CFR 300.322(a), (a)(2) and (d) and 300.328. Section 300.322(a) provides that the district “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting”. Section 300.322(a)(2) provides that IEP Team Meetings must be scheduled “at a mutually agreed on time and place”. The regulations at Section 300.322(d) provide that a district may only hold a meeting without a parent if the public is “unable to convince the parents that they should attend”. Section 300.328 provides that “the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation such as video conferences and conference calls”36 The Court concluded that while the parents’ communicated intent to enroll the student in a private school “undoubtedly created confusion regarding whether the July 16 meeting was moving forward” as soon as the parents learned that the district and they were “not on the same page” the mother “immediately” “reached out” and advised that “she would very much like to attend and attempted to reschedule the meeting at a mutually convenient time”. This being the case, the Court concluded that at that time, “nothing more was required because, at that point, it was clear that the meeting was no longer at a mutually agreed on time and place” and that the district had not been “unable to convince the parents that they should attend”.

The Court dismissed the hearing officer’s conclusion that the district had done no wrong for two reasons. First, the Court wrote that “[w]here, as here, a conflict arises prior to the meeting, it is timely communicated to the other side, and an offer is made to reschedule, the previously scheduled meeting is no longer in conformity with the regulation [at Section 322(a)(2)] because it is no longer at a mutually agreed on time and place”. Second, the Court found that the hearing officer’s conclusion that the district had a right to go forward with the July 16, 2013, meeting “ignores the regulatory prohibition on holding a hearing unless [the district] is unable to convince parents that they should attend”. The Court said that “when [the parent] reached out on the day before the meeting saying she would very much like to attend, she had plainly communicated to [the district] that she believed that she should attend the meeting”. The Court said that the hearing officer “ignor[ed] the plain meaning of the regulatory language” when it analyzed “whether [the parents’] confusion regarding the meeting was reasonable”. Contrary to the position of the hearing officer, the Court said that “the regulatory scheme puts a clear thumb on the scales – parental participation is required up until the point the [district] can no longer convince the parents they should attend an IEP [Team] meeting”. According to the Court, “the [d]istrict may be required to accommodate parents even when they are difficult, contentious, or comparatively more at fault in a scheduling mix-up”. The Court concluded that the parent Section 300.322(c) provides that “[i]f neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls” (emphasis supplied).

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“plainly came within the reach of Section 300.322(d)” and “the hearing officer erred in finding that no violation occurred by holding the July 13 [sic] meeting in her absence”.

The Court held that “[d]ue to the primary importance of parental participation, the complete exclusion of the [parents] from the [July 16, 2013] IEP [Team] meeting [rose] to the level of a substantive FAPE denial because it significantly impeded their ability to participate in [the student’s] educational planning”.

Regarding the October 1, 2013, IEP Team meeting, the parents argue that this meeting “failed to cure the FAPE denial [resulting from the July 1, 2013 meeting] because [the October 1, 2013 meeting] was insufficient in scope to replace the July 13 (sic) annual review and because [the district] predetermined [the district-identified private school] as the appropriate placement for the student prior to the meeting”.

The Court stated that “where a [district] has caused a FAPE denial due to improperly excluding parents, it bears a heavy burden in remediating this procedural violation”. The hearing officer concluded that “because [the parents] were able to participate and because the relevant portions of the IEP were reviewed during the October 1 meeting, there had been no denial of a FAPE as a result of this meeting”. The Court rejected this reasoning and pointed out that the hearing officer’s conclusion was “premised on the …prior erroneous conclusion that no violation occurred with respect to the July 16 meeting”. The Court said that the hearing officer “fail[ed] to incorporate … that the [parents] were entitled to participate in the full creation of [the student’s] IEP for the 2013-14 school year” and that “this requires more than some after-the-fact participation, which is all [the district] offered here through the October 1, 2013 meeting”.

Reviewing the record, the Court pointed out that “critical components of an IEP [T]eam’s annual review were omitted or overlooked during the October 1, meeting”. The Court cited to the IDEA that “IEP [T]eams are required to, among other things, assess the student’s progress toward his annual goals, review the child’s anticipated needs, and receive information from the student’s parents”. Here, the Court found that “[t]he limited focus of the October 1 meeting failed to do so”. In particular, notwithstanding that the July 16 IEP Team was unable to update the student’s goals in numerous categories due “to lack of relevant data,” “the October 1 meeting did not review or update [the student’s] IEP in many of these areas”. “Nor did it seek information from the [parents’] on [the student’s] progress in these areas.” The Court said that “[i]nstead, the October meeting “focused almost exclusively” on the district’s preferred placement, “a recent incident that had occurred with a home instructor, and updating [the student’s] goals in the social-emotional category”. The Court concluded that “[t]his limited review was insufficient to cure the prior deficiencies [of the July 16, 2013 IEP Team meeting] resulting in a continued FAPE denial through the next time the IEP [T]eam convened on July 29, 2014” for its annual review for the 2014-15 school year.

Regarding the parents’ claim that the district predetermined the recommended private school at its October 1, 2013 meeting, the Court concluded that this was not the case. The Court said that “[w]hile parents’ participation is crucial to the determination of an appropriate educational 223

placement for a student, the IDEA does not explicitly require parental participation in site selection”. The Court said that “[s]o long as the location of services is based on and capable of implementing the student’s IEP, local educational agencies generally have discretion in selecting the appropriate site”. The Court pointed to the fact that the parents “cite a litany of concerns” they had with the district’s recommended placement but do not “present any evidence that the hearing officer erred in finding that [the student’s] IEP [T]eam carefully considered [the student’s] needs and [the parents’] concerns and the record “fully supports the hearing officer’s conclusion on this issue”. The Court said that the matter was simply a case where the student’s parents disagreed with the IEP [T]eam’s recommended school placement.37 As it relates to the July 29, 2014 IEP Team meeting, the hearing officer concluded “that the [d]istrict did not significantly impede [the parents’] right to participate in planning [the student’s] education for the 2014-15 school year”. The Court was in agreement “with the hearing officer’s conclusion that the evidence does not support a finding that the [parents] were not able to participate in the July 29 meeting or that the discussion was unduly limited”. Regarding this, the Court pointed to the fact “that the IEP [T]eam reviewed each area of concern for [the student] and revised several of his goals”. Additionally, and “[a]s the hearing officer found, [the parents] gave feedback throughout” and “[i]ndeed the IEP made several adjustments specifically in response to [the parents’] requests, including adding assistive technology to assist [the student] and agreeing to conduct comprehensive evaluations and assessments.” Regarding the fact that the parents were not given a copy of the draft IEP before the IEP Team meeting, the Court said that, “as [the parents] concede, at the time of the meeting [the district] was not under any specific statutory or regulatory obligation to do so”. That being the case, the Court found that the failure of the district to provide the parents with a copy of the draft IEP prior to the IEP Team meeting did “not constitute a procedural violation, must (sic) less one that significantly impeded [the parents’] ability to participate”. 38 Finally, the parents argue that the district sent the student’s “educational records to private schools without their consent” “They contend that had the [d]istrict let [the parents] play a larger role in selecting which records would be sent to prospective schools, it would have enabled [the parents] to better participate in the process of assessing a location’s ability to implement [the student’s] IEP, and therefore the failure to adequately involve the parents in this process significantly impeded their ability to participate in planning [the student’s] educational The Court does not explain on what basis the IEP Team could determine an appropriate placement for the student in light of the fact that the IEP Team did not review or update the student’s IEP in many relevant areas, review the student’s anticipated needs, and receive information from the student’s parents.

37

38 The parents also argue here that the district “violated [their] right to participate by refusing to reconvene or otherwise consider information the [parents] provided after the meeting, principally a letter from [the student’s] psychologist”. With respect to this, the Court held that since the parents had not raised this issue with the hearing officer, the parents had not exhausted their administrative remedies relative to this issue and that therefore it would not consider the issue.

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placement, resulting in a FAPE denial”. The Court concluded that the parents “offer[ed] no precedential support” for the parent’s argument and that it was unsupported by the record.

Regarding the latter, the Court said that the parents initially consented to the disclosure of the student’s records and by September the parents may have withdrawn consent for at least some of the records. The Court held that even if this had been the case, the parents “have failed to adequately connect the alleged disclosure of confidential records after the point at which consent was withdrawn to [the parents’] ability to meaningfully participate in [the student’s] educational placement”.

With all of the above in mind, the Court concluded “that [the student] was denied a FAPE during the period between July 16, 2013 and July 29, 2014 39 due to the [d]istrict’s significant impediment of [the parents’] participation in their son’s educational planning during this timeframe”. As a remedy, the Court remanded the matter to the hearing officer for a determination of the amount of compensatory education due the student.

PARENT SUBMITTED EVALUATIONS AND DATA Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: committee on special education – parent-submitted evaluations and data Dispute: should the CSE have considered a parent evaluator’s report on the student.

Conclusion: The Second Circuit concluded that the District Court was correct when the CSE did not consider a parent evaluator’s report.

Key Take Away: The CSE is not required to consider a parent evaluator’s report that questions the district’s assigned school. Moreover, a CSE is not required to review a private evaluator’s report that does “not necessarily have a direct effect on the substantive adequacy of [the student’s] IEP”.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

The CSE met in March 2021 and developed an initial IEP for the student for the 2021-2022 school year. After this, a private evaluator prepared a report about the student for the parents. The CSE met again in August 2021 and modified the IEP by changing the student’s special education classification to multiple disabilities and its recommendations for assistive technology. The CSE did not consider the private evaluator’s report. After the district notified the parents of the student’s assigned school, the parents re-enrolled the student at the private school that the student had been attending since March of 2020.

39

This was the 2013-14 school year.

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The parents submitted a due process complaint in October 2021. The complaint asserted that the district denied the student a FAPE for a number of reasons including that the CSE did not consider the report of the private evaluator. After an impartial hearing, at which a number of persons testified, including the private evaluator for the parents, the Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents.

The district appealed the case to a State Review Officer (SRO). In a 27-page decision, the SRO explicitly considered [the parents’] procedural and substantive objections and assessed with [references] to the record, relevant evidence”, including that from school psychologists, the private school, and the parents’ evaluator.

With particular regard to the testimony of the student’s evaluator that the student’s assigned school was inappropriate, the SRO concluded that it should be given little probative weight because it was “rife with generalizations and unsupported hypotheticals about other classrooms, different years, and safety concerns, and stereotypes of students with different disability classifications, which were particularly unconvincing given that [the evaluator] did not conduct an observation of the proposed district classroom or of the student”. The SRO also pointed out that the private evaluator did not conduct an observation of the district’s proposed classroom or of the student.

The parents filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to find in their favor. The District Court ruled in favor of the district, concluding that the district provided the student with a FAPE and that therefore the parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

The parents requested that the District Court change its mind. The District Court declined to do so. The parents then appealed the decision of the District Court to the United States Court of Appeals for the Second Circuit. The parents argued in that Court that the district “violated IDEA procedures” by not considering the private evaluator’s report “in fashioning [the student’s] IEP, which the parent said, “could have led to a different school placement recommendation”.

The Court of Appeals did not agree. In the first place, the Appeals Court pointed out that an IEP is not required to contain a recommendation for a specific school placement and that the absence of one is not a procedural violation. The Appeals Court also referenced the SRO’s decision that little weight should be given to the private evaluator’s recommendation regarding the district’s assigned school because the recommendation “was based on generalizations and unsupported hypotheticals”. The Appeals Court concluded that because of this, the report “did not necessarily have a direct effect on the substantive adequacy of [the student’s] IEP.” The Court of Appeals determined that the District Court correctly held that the fact that the CSE did not consider the private evaluator’s report was not a denial of a FAPE. 226

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the CSE’s initial evaluation properly evaluated the student.

Conclusion: The Court upheld the SRO’s conclusion that the CSE’s initial evaluation properly evaluated the student.

Basis of the Court’s Decision: In this case, the parties agree that the CSE “failed to conduct all evaluations required by State regulation.” See 8 NYCRR 200.4(b)(1). In particular, the CSE did not conduct its own speech and language evaluation. However, the CSE substituted a district evaluation with one provided by the parents and the Court found, citing authority, that this did not deprive the child of a proper evaluation. See M.H. v. New York City Dept of Educ., 10 CV-01042, 2011 WL 609880, at *9 (S.D.N.Y. Feb. 16, 2011) (“The IDEA clearly permits parents to obtain private testing and nowhere implies that local schools must corroborate private results before using them.). With that in mind, the SRO found and the Court agreed that the information the CSE did have in front of it was sufficient – including the private evaluation that the plaintiff had provided – and which enabled the CSE to make an appropriate determination of the student’s auditory processing abilities. The Court held that this was a procedural violation and that as such, a denial of FAPE would be shown only if it impended the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or caused a deprivation of educational benefits. The Court said that here the fact that the parents provided their consent to the evaluation did not mean that when the evaluation was not performed, the parents were impeded in the process. As indicated, the Court said that the CSE properly substituted the parents’ evaluation for one done by the district. The Court pointed out here that the parents also attended the CSE meeting.

The Court also concluded that “[a] review of the entire record indicated further that the CSE would have come to the same conclusion as to [the student’s] ineligibility whether it had before it all statutorily required information or not and, therefore any such violation did not deny [the student] a FAPE”. The parents also argued that the CSE did not adequately consider the information it did have and, apparently, that the CSE was required to review all relevant documentation/information before the CSE meeting. The Court concluded that the parents provided no authority for this, that the CSE had time to review the information “in an efficient manner during a one-hour session, and that three levels of review (by the IHO, the SRO, and the Court) had determined by substantial consideration that the totality of the record supports the CSE’s determination that the student was not eligible under IDEA and that this compensated for any purported lack of consideration by the CSE. The Court upheld the SRO’s determination.

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REQUIRED MEMBERS Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) Issue: CSE - required members Dispute: Was the physician member of the CSE required to attend in person.

Conclusion: The Court concluded that, in this case, it was proper for the physician member of the CSE to attend by telephone.

Key Take Away: Unless there is a specific reason why the physician needs to attend a CSE meeting in order to assure that the student is provided a free appropriate public education, the physician may attend by telephone.

Reasoning: The student has been diagnosed with cerebral palsy and a seizure disorder. He cannot speak or walk. The student needs help in all areas of mobility and activities of daily living.

In early 2018, the CSE met to discuss the student’s IEP. The physician member attended by telephone. In July 2018, the student’s parents filed a due process complaint, which included the fact that the physician member attended by telephone.

The District Court concluded that “having the district physician participate by phone, absent a specific reason why the physician needed to attend the meeting in person, should have been sufficient to ensure the parents’ ability to participate in the meeting”. The District Court also pointed out that the Impartial Hearing Officer (IHO) and the State Review Officer (SRO) concluded that the fact that the district’s physician did not attend in person did not mean that the district had denied the student a free appropriate public education.

The District Court found that the SRO’s decision was “sensibly reasoned and based on a thorough review of the record”. It upheld the SRO’s determination.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the school physician was required to attend the CSE meeting.

Conclusion: The Court held that there was no reason for the school physician to attend the CSE meeting.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

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The parent argued that the CSE meeting “was deficient because no medical doctor attended”.

The Court, however, pointed out that the SRO found that there was “no evidence in the record that [the parent] had requested the attendance of a physician or any other medical professional prior to the … CSE meeting -- only that [the parent] had inquired during the IEP meeting about involving [the student’s] neuropsychologist. The Court, upon her review of the record, agreed with the SRO.

Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Was the grandmother’s and natural guardian’s inability to attend the annual IEP meeting a deprivation of a FAPE by preventing the grandmother from meaningfully participating in the IEP process.

Conclusion: Reversing both the IHO and the SRO, the Court held that the grandmother’s inability to attend the IEP meeting denied the student a FAPE by preventing the grandmother from meaningfully participating in the IEP process.

Basis of the Court’s Decision: The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage …, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

In this case, the CSE convened for its June 5, 2019 meeting to develop the student’s IEP for the 2019-20 school year. “However, the [grandmother] was still in transit at the meeting’s start time.

By 10:00 am, the advocate, who was present at the meeting, informed the rest of the CSE that [the grandmother] had gotten lost and was returning to her home in Brooklyn. According to [the district], the CSE asked [the grandmother’s] advocate if [the grandmother] could participate by phone, but the advocate insisted that [the grandmother] needed to attend in-person. At approximately 10:05 am, [the grandmother’s] advocate and the [team from the private school] left the meeting. Again, according to [the district], at that time, the remaining members of the CSE contacted [the grandmother] via phone to begin the meeting, but [the grandmother] said she needed another 30 minutes. The CSE allegedly called [the grandmother] back at 10:30 am but she did not pick up”. At that time, the CSE started the meeting and created the student’s annual IEP without the grandmother, the grandmother’s advocate, the private school team, or a district physician, the latter which the grandmother had requested to attend.

The grandmother “argues that the CSE’s failure to include her in the IEP meeting amounted to denying [the student] a FAPE …. Specifically, [the grandmother] alleges that predetermination of a child’s IEP amounts to a procedural violation if it deprives the student’s parents of meaningful participation in the IEP process”. See B.K. v. New York City Dep’t of Educ., 12 F. Supp. 3d 343, 358 (E.D.N.Y. 2014).

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The IHO concluded that “I am not finding that the [district] excluded the parent. In fact, this record as laid out raises a legitimate question with regard to cooperation by the [grandmother]”.

The Court held that the IHO’s decision was “confusing and self-contradictory”. Specifically, “[t]he Court [found] the IHO’s final conclusion, i.e., that [the grandmother] was not erroneously excluded from the CSE meeting, to be illogical, devoid of adequate citations to the record, and neither thorough nor careful”. As a consequence, the Court determined not to afford any deference to that decision.

The SRO found that the non-attendance of the grandmother and the private school staff at the CSE meeting “was not an issue raised for consideration during the impartial hearing and the IHO did not address it”. The Court disagreed and concluded that these augments were “plainly erroneous and controverted by the record”. In particular, the Court found that the grandmother had raised that issue in the due process complaint notice and that the IHO had addressed the issue in his decision. The Court continued that “[t]he SRO’s finding … [was] not supported by a preponderance of the evidence and her reasoning was neither persuasive nor consistent with the proper inquiry”. Based on this, the Court concluded that the SRO’s determination should be given no deference.

Regarding its own analysis, the Court pointed to, among other things, the IDEA’s requirement that the parent be allowed to participate in CSE meetings. The Court viewed the absence of the parent member and the early departure of her advocate and the team from the private school as amounting to “predetermination” as the grandmother was “effectively deprived of meaningful participation in the IEP process”. J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 648 (S.D.N.Y. 2011); see also J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 447 (9th Cir, 2010).

Looking to the facts, the Court concluded that “the CSE did not consider almost any of [the grandmother’s] concerns because the CSE excluded [the grandmother] from the meeting”. The court dismissed the district’s claim in Court that the parent “actively chose not to [attend the IEP meeting] through no fault of the district”.

The Court found that the district’s “argument and actions [] defy logic if not compassion” and that it was the district who made “the active choice to exclude [the grandmother] from the IEP meeting and acted unreasonably in refusing to reschedule the meeting”. In particular, the Court pointed out that the grandmother “was lost on the subway during the time that the CSE insisted she participate in the IEP meeting by phone. Aside from the technological, impossibility of doing so, it clearly would have been inappropriate to require [the grandmother] to participate remotely while traveling underground in a subway car. Furthermore, even if the Court were to credit [the district’s] account about trying to arrange [the grandmother’s] remote participation 30 minutes after her advocate and the [private school] staff had left the meeting – when she theoretically could have been out of the subway – this still would have been an unreasonable way to proceed.

The record is replete with evidence that [the grandmother] would not have been able to meaningfully participate in the meeting remotely, especially given that the meeting would have involved intensive document review and discussion. The record shows that [the grandmother] 230

resides in a noisy home with multiple children, without access to a laptop for reviewing documents and that [the grandmother] is not that perfect with technology”.

The Court held that by holding the IEP meeting “without [the grandmother], [the district] predetermined [the student’s] placement and prevented [the grandmother] from, meaningfully participating in the IEP process” and that “[a]ccordingly” the student was denied a FAPE.

Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Was the absence of a district physician at the CSE meeting a violation of a FAPE. Conclusion: Reversing the SRO, the Court held that the absence of a district physician at the CSE meeting when combined with the “active exclusion” of the grandmother from the CSE meeting deprived the student of a FAPE. Basis of the Court’s Decision: The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage …, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

The Court first determined that the grandmother was unable to attend the CSE meeting because she got lost in the subway, the CSE proceeded without her, and she was therefore unable to meaningfully participate in that meeting. The Court concluded that the student was therefore denied a FAPE. In addition to this issue, the parent had timely requested on more than one occasion that the district physician attend the CSE meeting. The grandmother had made that request “given [the student’s] medical conditions and recent surgery” as she believed “it would have been more than appropriate to have a licensed physician give their opinion on [the student’s] educational program in his days of recovery”.

The Court first analyzed the SRO’s decision. With regard to this, the SRO had concluded that the physician’s absence did not involve a violation of a FAPE because “(1) the school psychologist did not think a medical doctor would have been helpful or necessary, (2) the CSE had information regarding the student’s medical condition, and (3) the [grandmother’s] non-attendance at the meeting made the physician’s nonattendance of lesser consequence”.

The Court concluded that the SRO’s “findings are not supported by a preponderance of the evidence and the Court therefore does not defer to her conclusion”. With respect to the SRO’s first two reasons, the Court said that the SRO “relied heavily on the school psychologist’s testimony” which was, first, that it “would not have been helpful or necessary in making a recommendation” and, second, that the private school’s proposed IEP “provided a description of the student’s medical condition and his needs with respect to his medical condition”. The Court 231

said, however, that the school psychologist was unable to explain why the CSE chose one classification over another and specifically that the psychologist was unable to answer “which of [the student’s] impairments [were not] related to his brain injury” and his response, which was that he “was not a brain doctor and therefore didn’t know”. The Court said that this “bel[ied] the adequacy of the psychologist’s opinions regarding the student’s medical conditions and [the SRO’s] reliance on those opinions”.

Regarding the SRO’s claim that because of the grandmother’s absence from the CSE meeting, this made it less important for the district physician to attend, the Court pointed out that the parent’s inability to attend the CSE meeting was attributable to the CSE’s “effective exclusion” from that meeting and amounted to a denial of FAPE. The Court said that “[t]hus, the SRO’s reliance on the [grandmother’s] non-attendance certainly [did] not cure the physician’s non-attendance” and that this reasoning was “nonsensical”. The Court said that the absence of the physician “only compounded the harm” caused by the absence of the grandmother at the CSE meeting as there was no one at that meeting “qualified to talk about the student’s “medical issues”.

The Court then turned to a review of the IHO’s decision and also found that lacking as well. In particular, while the IHO decision made clear that the grandmother had requested the physician to attend the meeting as that was necessary under the circumstances, no district physician attended. But, the Court said, the IHO decision went no further.

The Court then referenced State regulation that the CSE should include a school physician if specifically requested in writing and within 72 hours of the CSE meeting. The Court said that, as indicated above, the grandmother had satisfied these requirements; which the district conceded.

With this in mind, the Court held that the absence of a school physician was a “procedural violation” of the IDEA. The Court went on to explain that, “[o]nly procedural inadequacies that individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP constitute a denial of a FAPE”. See Carrillo v. Carranza, 20 Civ. 4639 (CM), 2021 WL 4137663 at *11 (S.D.N.Y. Sept. 2021), citing Knable v.

Bexley City School District, 238 F. 3d 755, 766 (6th Cir. 2001), cert. denied, 533 U.S. 950, 121 S.Ct. 2593, 150 L.Ed.2d 752 (2001). 40 In this case, the Court said that the grandmother was “already denied an opportunity to participate in the creation of [the student’s] IEP because she was excluded from the meeting [and that the district’s] simultaneous refusal to accommodate [the

The Court cites to Carranza which relies on Knable, an earlier formulation regarding when a procedural violation denies the student a FAPE. At this point in time, the standard is that a procedural violation will constitute a violation of a FAPE if that procedural inadequacy (1) impeded the child’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or (3) causes a deprivation of educational benefits. R.E. v. New York City Dept of Educ., 694 F 3d 167, 190 (2d Cir. 2012), As you can see from the above, the cited reference is correct in relevant part. As indicated above, it is also the case that while a procedural violation may not in itself result in a violation of a FAPE, that violation -- when considered cumulatively with another -- may do so. Id. 40

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grandmother’s] request for physician input at the meeting further exacerbated her lack of meaningful participation in the IEP process”.

The Court found that the absence of a district physician at the CSE meeting “when combined with [the grandmother’s] exclusion from the meeting, deprived [the student] of a FAPE. Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Whether it was a violation of FAPE for the physician member of the CSE to appear by telephone.

Conclusion: The Court concluded that while it was a procedural error for the physician member of the CSE to appear by telephone, it was not a violation of FAPE. Basis of the Court’s Decision: In this case, the parents argued “that the [district’s] school physician’s participation by telephone resulted in a denial of a FAPE.” “Under New York law, each member of the CSE must attend full CSE meetings. See 8 NYCRR 200.3(f). [In addition,] their attendance must be in person, unless the [district] and the parents agree to use alternative means of participation such as video conferences or conference telephone calls. 8 NYCRR 200.5(d)(7). Further, a parent can request that a school physician become a member of the CSE, whose in-person attendance would be required under New York regulations. 8 NYCRR 200.3(a)(vii)”.

The Court said “[h]ere, neither party contests that the [p]arents made a timely request for a [district] school physician to be a member of the CSE and attend the meeting in person:” “Nor is there any dispute [said the Court,] that the [p]arents never agreed to permit the school physician to attend the meeting telephonically; to the contrary, the [p]arents explicitly requested that the physician attend the meeting in person.” “[T]he IHO found that the physician’s participation by telephone did not limit the physician’s ability to review the student’s educational records and offer an opinion on placement”. “The SRO agreed, holding that while the absence of parental agreement that the district physician attend via telephone, instead of in person, may be a technical violations of state procedures, it [did] not rise to the level of a denial of FAPE … because the physician attending via telephone instead of in person did not preclude the parents from participation in the development of the …IEP”.

The Court advised that “[t]he parents point to nothing in the record that suggests the school physician’s participation by telephone impeded the [p]arents’ opportunity to participate in the [CSE] meeting or otherwise [denied] the student a FAPE”. With this in mind, the Court pointed out that “[t]he parents have thus offered no reason for [the] Court to disturb the conclusions of the IHO and SRO that the physician’s telephonic participation, through a procedural error, does not require relief” and cited to case law in the Second Circuit for the proposition that courts “have repeatedly found no IDEA violation where a CSE member participated telephonically in a [CSE] 233

meeting.” See S.A. ex rel. M.A.K. v. New York City Dep’t of Educ., 2014 WL 1311761, at *9 (E.D.N. Y. Mar. 30, 2014).

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the CSE was properly constituted.

Conclusion: The Court upheld the SRO’s conclusion that the CSE was properly constituted.

Basis of the Court’s Decision: The IDEA requires that an IEP Team include “not less than one regular education teacher of the child (if the child is or may be, participating in the regular education environment)”. See 20 U.S.C. 1414(d)(1) ((B)(ii).

In this case, the student’s regular education IEP Team teacher was not her current regular education teacher but the student’s regular education teacher from the previous school year.

The Court concluded that there was no requirement in the IDEA nor its regulations that required the regular education teacher on the IEP Team be a student’s current regular education teacher.

Further, and even if that were the case, the Court said that “not every procedural violation during a CSE evaluation constitutes a denial of a FAPE”. In this regard, the Court said this was the case only for those that impede the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or caused a deprivation of educational benefits.

The Court cited to the SRO’s decision that said “there is no evidence to support that the inclusion of a sixth-grade regular education teacher who was familiar with the student instead of one of the student’s seventh grade regular education teachers was so infirm as to have impeded the student’s right to a FAPE or significantly impeded the parent’s opportunity to participate in the decision-making process, or caused a deprivation of educational benefits”.

The Court said that it agreed with this and that “moreover, the parents have not persuasively identified any prejudice as a result of this. It also pointed out that the parents “argue that a current observation of [the student’s] performance in the classroom is an invaluable tool to understand the impact of [the student’s] impairments in the school setting and her present level of functioning”. The Court said that “[y]et the record does not indicate that [the student’s] levels of functioning regressed from sixth to seventh grade and to the contrary, shows that [the student] made improvements in the classroom during that time. As such, the Court said the [previous year’s teacher’s] observations of [the student] in sixth grade would be more likely to support [the parents’] position than prejudice it.” (emphasis in original).

The Court upheld the SRO’s decision that the IEP Team was properly constituted.

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Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) Dispute: Did the IEP Team review existing evaluations including evaluations and information provided by the parents of the student and did the IEP Team consider the concerns of the parents for enhancing the education of their child? And relatedly, did the district provide the student with a FAPE? Conclusion: The Court concluded that IEP Team neither reviewed existing information including evaluations and information provided by the parents of the student nor considered the concerns of the parents for enhancing the education of their child. And relatedly, the district did not provide the student with a FAPE. Basis of the Court’s Decision: The IHO determined that the district failed to comply with its procedural and substantive obligations under the IDEA. The SRO disagreed. The Court, found, among other things, that the SRO erred by rejecting a number of the IHO’s credibility determinations. These concerned, among other things, whether the IEP Teams reviewed evaluations provided by the parents; whether the IEPs at issue included the components of the Orton-Gillingham approach; whether “the evaluations plainly indicated that [the student’s] unique needs mandated the inclusion of a specific methodology”; and that because, “the IEPs only included multisensory instruction”, whether the IEP Teams could have meaningfully considered the evaluations or [the parents’] concern”. This being the case, the Court found that the SRO improperly rejected the IHO’s conclusion that the IEP Team did not “review existing evaluative data of the child including … evaluations and information provided by the parents of the child”; did not “consider the concerns of the parents for enhancing the education of the child…” and that the district “substantively violated the IDEA. According to the Court, “the primary dispute at the center of [the] action [was] whether the IEP [T]eam was required to include the Orton-Gillingham methodology or a similar program, in [the student’s] IEP. As indicated above, the Court found that the IHO properly concluded that the IEP Teams did not comply with the IDEA’s procedures in that “the IEP [T]eams did not adequately review the evaluations provided by [the parents]” nor “meaningfully consider [the parent’s] concerns for enhancing the education of their child.”

With respect to the former the Court found that “the [d]istrict ignored the central findings and recommendations of the professional evaluations of [the student]”. More specifically that these evaluations did not only call for multisensory instruction but “stressed the importance of the delivery mechanism by which [the student] would receive that instruction.” In particular, a 2009 evaluation expressed the opinion that “[m]ethodology will be a key factor in improving [the student’s] academic standing and that “[the student] will respond best to instructional programs that provide simultaneous, multisensory programs … and are also systematic and cumulative”.

The subsequent 2013 evaluation, which was prepared by the same evaluator, repeats the above 235

and also stated “[u]nless the student has multimodality teaching, i.e., a combination of visual, auditory, tactile, and kinesthetic, she will most likely have difficulty in academic settings, especially as the academic tasks become more abstract.” Further, a 2015 evaluation states that “[the student] will continue to require intensive, multimodal, research-based learning programs for reading comprehension and math”. In testimony before the IHO this evaluator stressed that “it matter[ed]” how the multisensory or multimodality approach is implemented and that it required “that it should be a program approach… there should be a methodology to it” and there “should be a philosophy to it and one that is applied with really rigorous consistency.”

In contrast to these evaluations, the Court observed in its decision that “the 2014 IEP included, [among other things], the instruction that a multisensory approach to teaching was to be used throughout the school day.” “[T]he 2016 IEP included, among other things, “multisensory instruction that will incorporate the simultaneous use of two or more sensory pathways during teacher presentations and student practice in Special Education classes”. According to the Court, neither the 2014 nor the 2016 IEPs “identified a specific methodology, or program, or structured curriculum format that teachers were obligated to utilize in meeting [the student’s] unique needs”.

The Court concluded that “[t]hus “it [was] evident from the undisputed evaluations, which stress the importance of methodology and the use of the research-based learning programs that the IEP [T]eam failed to consider the evaluations in any meaningful way”. With respect to the SRO’s position that the inclusion of “multi-sensory instruction” in the two IEPs were components of Orton-Gillingham and that this independently supported the conclusion that the district had considered the evaluations, the Court said that “the issue [was] not only the type of instruction but the way in which it [was] delivered”. The Court admitted that “[the district was] not generally required to include a methodology in the IEP, [but that] the district’s own Procedures Manual makes plain that in rare circumstances a student’s individual needs may require a certain methodology if the IEP [T]eam determines that it would be necessary to receive a FAPE. The Court found that had the IEP Team considered the student’s evaluations and their recommendations they “would have recognized that this was one of those rare circumstances”.

With respect to whether “the IEP [T]eams failed to consider [the parents’] concerns, the Court cited testimony to the effect that “the IEP [T]eams failed to respond to their inquiries about which programs, if not Orton-Gillingham, the District was able to provide that would address [the student’s] unique needs”.

The Court also found that the district violated the substantive obligations of the IDEA. The Court said that taking into account the district’s procedural violations “and as the record and the evaluations make clear, [the student] required a specific methodology in order to receive a FAPE”. The Court went on to say that “this is not to say that [the student] necessarily required the Orton-Gillingham methodology but she did require an equivalent methodology that was [] research based, [] systemic, [] cumulative and [] rigorously implemented”. The Court found that 236

the district did not have any such program and that the district’s representation that its “multisensory program in the IEP was illusory”.

The Court concluded that the procedural and substantive violations deprived the student of a FAPE because they “seriously infringed the parents’ opportunity to participate in the IEP formulation process” and “also resulted in the loss of educational opportunity for [the student]”.

The Court also concluded that “as made plain by the evaluations and their recommendations [the student] cannot learn without a consistent and structured approach to multisensory instruction throughout the school day.” Further, the Court went on to state that by [f]ailing to identify a methodology that would ensure that the same approach is consistently utilized throughout the school day by all of [the student’s] instructors necessarily means that [the student] will not have the opportunity to learn as she needs to”.

C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that providing an evaluation to the district required the CSE to reconvene. The district argues that the IDEA has no such requirement.

Conclusion: The district Court upheld the SRO that the IDEA did not require the CSE to reconvene upon its receipt of such information.

Basis of the Court’s Decision: The Court held that the IDEA only required the CSE to reconvene at least annually and at that time, to revise the IEP as appropriate to address, among other things, new information from the parents but that there was no statutory mandate to reconvene whenever additional information comes to their attention. Regarding this, the Court also pointed to the fact that the CSE reviewed the evaluation at its next CSE meeting. The Court also held that even if there were such a requirement, the evaluation “did not contain any new substantive information that would have required the CSE to revise [the student’s] IEP and change [the student’s] placement.”

Application of the New York City Department of Education, 20-108 (8/10/20) Dispute: The parent submitted evaluative data to the CSE including a neuropsychological evaluation. The parent contended that, among other things, one of the submitted reports recommended, “’a therapeutic setting that specialized in the education of students with autism’” and that “the student needed to receive instruction ‘using a research and evidence based program such as ABA’ and “that the program needed to be provided in ‘a structured and predicable environment’”. The parent asserted that such a program ‘could only be found in a nonpublic school”. The parent also wanted ten hours a week of at-home ABA. The district contends that its IEP conforms “in practice” with the parent’s neurophysiological evaluation and sets out a program that is “functionally equivalent” to the recommendations in the neuropsychological report. The district asserts that the purpose of the home-based ABA was to generalize skills to the home environment and was therefore not appropriate in the IEP. There was no dispute that the student needed a 12-month program.

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Conclusion: The SRO concluded that the evidence in the hearing record supported the IHO’s finding that the district’s IEP did not offer the student a FAPE. Basis of the SRO’s Decision: The SRO reviewed the evaluative data submitted to the CSE by the parent. Specific recommendations therein stated that the student needed a program “such as ABA” or ABA instruction for, among other things, academics, skills and skill acquisition, prevocational skills and goals relating to academic and language skills. The SRO concluded that the district failed to explain how its IEP addressed the student’s documented need for 1:1 intensive instruction throughout the day for skill acquisition and to achieve, among other things, academic and language skill goals. The SRO concluded that while the district might argue that its recommended paraprofessional may assist the student with respect to behavior, the IEP did not provide “for the student to receive 1:1 instruction to improve functional academics and prevocational skills” as recommended in the evaluative material provided to the CSE by the parent.

The SRO explained that there was “nothing in the hearing record to indicate that the 1:1 paraprofessional was intended to provide instruction to the student”, and further, that state regulations provided that a paraprofessional could not independently provide the recommended level of instructional services set out in the evaluations before the CSE. Additionally, the SRO indicated that while the district provided the CSE with certain limited and inadequate evaluative information, the CSE had “no independent source of information to support its position that the student did not require 1:1 instruction using ABA methods”. Lacking its own evaluations to support its recommendations that the student’s program did not require 1:1 instruction using ABA and keeping the above in mind, the SRO concluded that the hearing record supported the IHO’s finding that the IEP failed to offer the student a FAPE; a finding which included 10 hours a week of at home ABA and which amount was supported by the evaluative data submitted to the CSE by the parent.

INTERPRETATION SERVICES Y.A. v. New York City Dep’t. of Educ., No. 15-cv-05790 (CM), 2016 WL 5811843, at *2, *6, *13-*14, *19 (S.D.N.Y. Sept. 21, 2016) Dispute: Whether the District’s failure to provide the parent with interpreter services at CSE meetings was a violation of a FAPE. Conclusion: The Court held that the failure of the district to provide an interpreter at CSE meetings was a procedural violation that deprived the student of a FAPE. Basis of the Court’s Decision: 34 CFR 300.322[e] provides that “[t]he public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English”. In this case, the parent’s native language is Russian.

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The IHO found that the parent “did not need” an interpreter at the CSE meetings. The SRO upheld the IHO but “did however, recognize the possibility of procedural failings that the IHO had simply dismissed by ordering, [among other things] that the [district] consider whether the parent required an interpreter for the next year’s CSE meeting”.

The district asserted before the Court that the parent “speaks and reads English so even if her native language is Russian, she was not disadvantaged when the CSEs were conducted in English.

The parent denied that “she speaks and reads English well”.

Unlike the district’s claim, the Court held that this issue was not a “credibility determination” requiring the Court “to defer to the IHO” but that “the issue is whether there is enough evidence in the record to indicate that the [parent] was denied her right to meaningfully participate in the process that determined her daughter’s special education plans”. Upon its review of the record, the Court found that the parent “speaks and writes some English and has made an effort to learn English”. At the same time, the Court concluded that the parent “is a non-native English speaker who struggles to speak and write in English” and that “the cumulative record supports the [parent’s] claim that she required Russian translation and interpretation in order to effectively understand and to be understood”. In this regard, the Court cited to, among other things, the fact that the parent “testified in Russian at the impartial hearing,” testified there “that it is easier for her to speak Russian than English”, that “she always needs a translator”, that “she informed the district] at every meeting that she needed a Russian interpreter”, and that “the parent’s written communication in the record demonstrate that her English is far from fluent”. “[L]ike (sic) SRO” the Court was “troubled by the [district’s] unresponsiveness to [the parent’s] language barrier”. The Court concluded, however that “unlike the SRO” it “declines to excuse as harmless error the [district’s] blind-eye approach to the [parent’s] language barrier”.

The Court held that “the [district’s] failure to accommodate the [parent] in Russian significantly impeded the [parent’s] opportunity to participate in the decision-making process regarding the provision of a FAPE to [the student] and therefore was a procedural violation that deprived the student of a FAPE.

DECLASSIFICATION & TERMINATION OF SERVICES Kevin T. v. Elmhurst Community Sch. Dist., No. 205, No. 01 C 0005, 2002 WL 433061 at *14 (U.S.D.C. Northern District of Ill. Eastern Division, Mar 20, 2002) Dispute: The district asserts that it can graduate the student as soon as the student has completed the number of credits to do so. The parents disagree.

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Conclusion: The Court held that the student had a right to receive special education until he was 22 in circumstances where even though the student met the general graduation requirements but did not make progress on, or complete, the student’s IEP’s goals and objectives.

Basis of the Court’s Decision: In this case, the Court concluded that the district unilaterally graduated the student when the student met the general graduation requirements. The Court further found that in making this decision the district did not consider the student’s progress on, or completion, of his goals and objectives before it decided to unilaterally graduate the student.

Regarding this, the Court found that the district did not discuss the student’s goals and objectives when making the decision to graduate the student. Based on this, the Court found that the District inappropriately graduated the student and reversed the IHO’s decision. Because of this, the court ordered the district to reimburse the parents for the reasonable expenses of the private school that the student was attending for the period of time after the district ceased its funding for the private school and before the Court issued its pendency order.

DISCIPLINE OF STUDENTS EXPUNGEMENT Application of the New York City Dep’t of Educ., Appeal No. 23-171 (Sept. 13, 2023) Dispute: Was the IHO’s determination to expunge the student’s expulsion from his school record subsequent to a finding that the student’s conduct at issue was a manifestation of his disability correct.

Conclusion: The SRO reversed the IHO’s determination to expunge the student’s expulsion from his school record subsequent to a finding that the student’s conduct at issue was a manifestation of his disability.

Basis of the SRO’s Decision: The student is eligible for special education as a student with an other health impairment (OHI).

According to a November 2014 psychiatric report considered by a reconvened October 2022 CSE, the student had received a diagnosis of autism at age two and had received Axis 1 diagnoses of attention deficit hyperactivity disorder (ADHD) and language disorder as of the last psychiatric evaluation. At the time of the expedited impartial hearing, the student was attending a charter school and had been at that school since the Fifth Grade.

As indicated, the CSE convened on October 2022. At that time, the CSE found that the student continued to be eligible for special education and related services as a student with an OHI. The resulting IEP reported that “there had been numerous incidents during the 2021-22 school year and the 2022-23 school year where the student had used inappropriate language towards his classmates and staff. The student had numerous suspensions including one [earlier that] year 240

due to these incidents”. The October IEP, among other things, recommended that the student’s program include one 40-minute session of individual counseling services.

During the period November 14, 2022 through April 25, 2023,and including, but not limited to, November 10, 2022, December 12, 2022, January 6, 2023, and April 20, 2023, the student was suspended from school on two occasions and/or had been reported or cited on other occasions for violating the charter school’s code of conduct relating to cutting school, arguing with another student, “excessive bullying or making threatening remarks towards another member of the charter school community”, “creating an extremely unsafe and dangerous environment”; “sending, receiving, or displaying offensive/obscene language or pictures via cell phone or computer”; “that the student had created an unsafe environment for members of the charter school… by threatening the safety of students and staff members through social media platforms and texts”. Among the things the student was cited for was a statement that “like y’all make me wana commit a school shooting, which the student later recanted”.

On April 20, 2023, among other things, the charter school notified the parent that the student’s “severe and/or repeated infractions of the school’s discipline code warranted expulsion from the school” and scheduled a disciplinary hearing for April 25, 2023. Subsequently, the district scheduled a manifestation determination hearing for April 27, 2023.

On April 25, 2023, after receiving notice of the disciplinary hearing and the manifestation determination hearing, the student stated that “you and everyone at school make me want to commit a school shooting and or worse actually and I’m not joking either”. After two additional messages, the student stated “that he was joking and did not actually think that”.

As a result of the disciplinary hearing and the determinations of the manifestation determination review (MDR) team, “the student remained expelled from the district’s charter school…”. Among other things, “the MDR team determined that the behavior that led to the incident in question was not caused by, nor did it have a direct and substantial relationship to the student’s disability” 41 The parent requested an expedited impartial hearing. The impartial hearing officer determined that the conduct at issue was a manifestation of the student’s disability and that as a consequence, among other things, the student’s expulsion should be expunged from the student’s records. The district appealed to the SRO. The SRO affirmed the IHO’s conclusion that the conduct at issue was a manifestation of the student’s disability – “but under different reasoning”. However, he reversed the IHO’s determination to expunge the student’s expulsion from his records.

Besides the threats of shooting others, the decision does not make it clear whether and/or what additional conduct may have been the subject of the district’s disciplinary proceeding and MDR determination.

41

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With respect to the SRO’s expungement determination, the SRO concluded that the IHO had exceeded his jurisdiction. The SRO pointed out that disciplinary proceedings under Section 3214 of the Education Law and appeals of those determined pursuant to Section 310 of the Education Law were separate and distinct procedures from Section 4404 of the Education Law regarding mediation and discipline of students with disabilities. Consistent with this, the SRO pointed out that the charter school student handbook provided that “in accordance with 3214, students subjected to an out of school suspension in excess of five days are afforded rights which include but are not limited to a hearing by the principal; or a designated hearing officer; an appeal, first to the Executive Director, then to the Board of Trustees and finally to the Commissioner of Education. The SRO pointed out that “while an IHO or SRO may rectify [a] flawed change in the student’s special education placement due to an error within the IDEA’s MDR process, the parent’s other requests related to the disciplinary process including modification of the student’s educational records in the form of expungement must first be brought before the executive director of the charter school, then the board of trustees and then properly appealed to the Commissioner of Education similar to the to the proceedings involving expungement described above”. See Educ. Law Section 310; 34 CFR 99.22, 300.621. The record reflects none of this taking place. The SRO concluded by “remind[ing] the parties [of his view] that the student’s educational records before the MDR, the CSE and the administrative decisions resulting from due process remain part of the student’s records and should remain available to assist with planning for the student’s special education programming”.

Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) Dispute: In circumstances where a manifestation determination review results in a finding that the incident in question is a manifestation of the student’s disability, is expungement of records an appropriate remedy.

Conclusion: The SRO reversed the IHO’s finding that since the incident in question was a manifestation of the student’s disability it was appropriate to expunge student records.

Basis of the SRO’s Decision: In an incident report on or about October 6, 2022, the student was described as self-disclosing that he wanted “to hurt himself and others”. Prior to this time and at a meeting on September 30, 2022, the CSE determined that the student continued to be a student eligible for special education and related services as a student with autism. The CSE recommended, among other things, that the student attend an 8:1+1 special class and receive related services of speech and language therapy. At this time, the student was in the 10th grade and had been diagnosed with autism and ADHD. As a result of the incident in question, the student was suspended from school. A disciplinary hearing as well as a manifestation determination review (MDR) hearing were also scheduled. The charge was upheld at the suspension hearing and the MDR team concluded that the student’s misconduct was not caused by his disability.

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The parent filed a due process complaint notice on February 6, 2023. Among other things, it alleged that the MDR team erred and that the student’s conduct was a manifestation of his disability, that he was wrongfully denied access to school, and that “the student’s educational records wrongfully contained damaging information” and should be expunged. The parent asserted violations of the IDEA and of Section 504 of the of the Rehabilitation Act of 1973.

Upon the hearing, “the IHO found that the student’s conduct did not clearly express homicidal intent or an actual homicidal plan and was an expression of the student’s feelings” and “further found that the student’s conduct was reflective of his agitated state and disability. Among other things, the IHO also found that the student “was deprived of education and services during the period of suspension”, that the student “should receive compensatory educational services” as a result of that, and that “all references to the student’s suspension should be expunged from the student’s educational records”.

The SRO concluded that he was “not convinced that the student’s conduct was not a manifestation of the student’s disability as the student’s conduct was not dissimilar to the social/emotional and behavioral needs that were targeted by the September 2022 IEP” and that “[a]ccordingly, there is insufficient reason to overturn the IHO’s conclusion on this point”.

Regarding the question of whether the student’s records could be expunged, the SRO pointed out that the parent’s request for expungement of relevant records “must first be brought according to the appeals procedure set forth in the district’s code of conduct and/or properly appealed to the Commissioner of Education” in a Section 310 proceeding. The SRO continued “that the student’s educational records before the MDR, the CSE, and the administrative decisions resulting from due process remain part of the student’s educational records and should remain available to assist with planning for the student’s special education programming”. Based on this, the SRO concluded that “the IHO exceeded his jurisdiction in expunging the suspension from the student’s educational records.”

INTERIM ALTERNATIVE EDUCATIONAL SETTING (IAES) Application of a Student with a Disability, Appeal No. 21-091 at pp. 38-42, 4850 Dispute: Did the district follow State regulation regarding the assignment of the student to an interim alternative educational setting.

Conclusion: The SRO held that the district did not properly assign the student to an interim alternative educational setting.

Basis of the SRO’s Decision: “The district may not unilaterally remove a student with a disability from his placement because it believes the student poses a safety risk. See Honig v. Doe, 484 U.S. 305, 321 (1988).” Consistent 243

with this, “[an interim alternative educational setting (IAES)] is a temporary educational placement, other than the student’s current placement at the time the behavior precipitating the IAES placement occurred. 8 NYCRR 201.2(k).” “As part of a disciplinary proceeding, a superintendent may remove a student with a disability to an IAES if the student’s conduct involved serious bodily injury, weapons, illegal drugs or controlled substances. 20 U.S.C. 1415(k)(1)(G)(i)–(iii); 34 CFR 300.530(g); 8 NYCRR 201.7(e).” “Additionally, if a district requests an expedited hearing, an IHO may order a placement to an IAES even if the student is not subject to a disciplinary proceeding if the IHO determines that maintaining the current placement of the student is substantially likely to result in injury to the student or to others.” 8 NYCRR 201.8(a), (c). “[A manifestation determination review (MDR)] meeting must be conducted within 10 school days after a superintendent or IHO decides to place a student in an IAES. See 8 NYCRR 201.4(a)(1)(2)”. “A student who is placed in an IAES shall continue to receive educational services so as to enable that student to continue to participate in the general curriculum … and to progress toward meeting the goals set out in the student’s IEP”. 8 NYCRR 201.2(k)(1).

In this case, the SRO concluded that the interim day treatment (IDT) program that the district assigned the student met the definition of an IAES and under the circumstances here, “the district was required to seek an IHO determination if it was of the view that maintaining the student’s program and placement he attended prior to the September 2019 CSE meeting was likely to result in injury to the student or to others”. The SRO pointed out, however, that the district did not do so. The SRO also pointed out that if the district had done that it “would thereafter have been required to conduct an MDR,” which it also did not do. See 8 NYCRR 201.4(a)(2).

According to the SRO, neither did the CSE “formally recommend the IDT program on the student’s IEP”.

With the above in mind, the SRO concluded that “the district cannot defend the student’s placement in the IDT as an IEAS or as an offer of FAPE and the IHO erred in finding that the district’s placement of the student in the IDT was procedurally or substantively appropriate.” As a consequence, the SRO concluded that the district denied the student a FAPE. As a remedy, among other things, the parent requested 37 days of compensatory education, which was based on the student’s being placed in the IDT for 37 days. The SRO pointed out that the district “failed to put in contrary evidence regarding an appropriate compensatory education award.” Only arguing that it had provided the student with a FAPE for the years in question, the SRO concluded that the district “failed to address its burdens as required under the due process procedures set forth in New York State Law”. The SRO concluded that “[g]iven the district’s failure to meet its burden of production or persuasion on the issue of compensatory education services, the calculations put forth by the parent are unrebutted”.

With respect to the issue relating to the assignment of the student to the IDT, the SRO awarded the student “an equitable award” of 37 hours of compensatory education, which was an hour of compensatory education for each day of unlawful placement. The SRO pointed out here that 244

although the student was assigned to the IDT for 37 days, while at that program, the student “worked at goals, received behavioral and therapeutic interventions, and made progress”. As support for her decision, the SRO cited to out of circuit cases for the proposition that “compensatory education should be denied when the deficiencies suffered have already been mitigated” and that “an award of compensatory education is not mandatory in cases where a denial of FAPE is established”. Since the student’s “primary area of need is behavioral” unless the parties agree otherwise, the SRO ordered that the “compensatory tutoring services awarded be provided by either a special education teacher or a [Board Certified Behavior Analyst]”.

MANIFESTATION DETERMINATION Application of the Bd. of Educ., Appeal No. 23-244 (Dec. 8, 2023) Dispute: Was the student’s conduct a manifestation of his disability.

Conclusion: The SRO upheld the IHO’s finding that the student’s relevant conduct was a manifestation of his disability.

Basis of the SRO’s Decision: In an incident report on or about October 6, 2022, the student was described as self-disclosing that he wanted “to hurt himself and others”. Prior to this time and at a meeting on September 30, 2022, the CSE determined that the student continued to be a student eligible for special education and related services as a student with autism. The CSE recommended, among other things, that the student attend an 8:1+1 special class and receive related services of speech and language therapy. At this time, the student was in the 10th grade and had been diagnosed with autism and ADHD. As a result of the incident in question, the student was suspended from school. A disciplinary hearing as well as a manifestation determination review (MDR) hearing were also scheduled. The charge was upheld at the suspension hearing and the MDR team concluded that the student’s misconduct was not caused by his disability.

The parent filed a due process complaint notice on February 6, 2023. Among other things, it alleged that the MDR team erred and that the student’s conduct was a manifestation of his disability, that he was wrongfully denied access to school, and that “the student’s educational records wrongfully contained damaging information” and should be expunged. The parent asserted violations of the IDEA and of Section 504 of the of the Rehabilitation Act of 1973.

Upon the hearing, “the IHO found that the student’s conduct did not clearly express homicidal intent or an actual homicidal plan and was an expression of the student’s feelings” and “further found that the student’s conduct was reflective of his agitated state and disability. Among other things, the IHO also found that the student “was deprived of education and services during the period of suspension”, that the student “should receive compensatory educational services” as a result of that, and that “all references to the student’s suspension should be expunged from the student’s educational records”.

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Regarding the question of whether the incident in question was a manifestation of the student’s disability, upon review of the hearing record, the SRO pointed out that the MDR team’s decision that the student’s conduct was not a manifestation of his disability was “based on the fact that, while the student’s social skills and perception of social situations were affected by his autism diagnosis, threats and thoughts of harming others was not a behavior pattern that had been seen and was beyond the scope of an autism spectrum disorder and was not reflective of how the student’s autism had manifested”. The SRO concluded that “the testimony of the district’s witnesses and the documents in the hearing record reflect reasoning that focused too prominently on the student’s diagnoses rather than on the student’s discrete presentation of strengths and deficits”. The SRO wrote that “[i]n particular, the MDR worksheet and the testimony of the district’s school psychologist demonstrate an overreliance on the symptomatology and diagnostic criteria of the student’s diagnoses of autism and ADHD, as well as his IEP classification” The SRO stressed here the difference between the student’s disability – “which is captured by the totality of the evaluative information used to develop the student’s then-current IEP, the needs derived from that evaluative material, the special education and related services recommended to address those needs, as well as all relevant information reviewed during the MDR, which includes information provided by the parent” -- and the student’s autism classification, which is only “the vehicle to [the student’s] eligibility for IDEA services” and “does not fully describe the student’s needs nor does it encapsulate his disability within the meaning of Part 201 [of the State regulations].

The SRO restated that the “issue under review” was “whether the district met its burden of demonstrating that the student’s conduct in question was not caused by or did not have a direct and substantial relationship to the student’s disability in order to effectuate a disciplinary change in placement”. The SRO concluded that he was “not convinced that the student’s conduct was not a manifestation of the student’s disability as the student’s conduct was not dissimilar to the social/emotional and behavioral needs that were targeted by the September 2022 IEP” and that “[a]ccordingly, there is insufficient reason to overturn the IHO’s conclusion on this point.”

Application of the New York City Dep’t of Educ., Appeal No. 23-171 (Sept. 13, 2023) Dispute: Did the district’s Manifestation Review Determination (MRD) team properly determine that the student’s conduct at issue was not a manifestation of the student’s disability.

Conclusion: The SRO affirmed the IHO’s conclusion which reversed the district’s finding that the relevant conduct was not a manifestation of the student’s disability.

Basis of the SRO’s Decision: The student is eligible for special education as a student with an other health impairment (OHI).

According to a November 2014 psychiatric report considered by a reconvened October 2022 CSE, the student had received a diagnosis of autism at age two and had received Axis 1 diagnoses of 246

attention deficit hyperactivity disorder (ADHD) and language disorder as of the last psychiatric evaluation. At the time of the expedited impartial hearing, the student was attending a charter school and had been at that school since the Fifth Grade.

As indicated, the CSE convened on October 2022. At that time, the CSE found that the student continued to be eligible for special education and related services as a student with an OHI. The resulting IEP reported that “there had been numerous incidents during the 2021-22 school year and the 2022-23 school year where the student had used inappropriate language towards his classmates and staff. The student had numerous suspensions including one [earlier that] year due to these incidents”. The October IEP, among other things, recommended that the student’s program include one 40-minute session of individual counseling services.

During the period November 14, 2022 through April 25, 2023,and including, but not limited to, November 10, 2022, December 12, 2022, January 6, 2023, and April 20, 2023, the student was suspended from school on two occasions and/or had been reported or cited on other occasions for violating the charter school’s code of conduct relating to cutting school, arguing with another student, “excessive bullying or making threatening remarks towards another member of the charter school community”, “creating an extremely unsafe and dangerous environment”; “sending, receiving, or displaying offensive/obscene language or pictures via cell phone or computer”; “that the student had created an unsafe environment for members of the charter school… by threatening the safety of students and staff members through social media platforms and texts”. Among the things the student was cited for was a statement that “like y’all make me wana commit a school shooting, which the student later recanted”.

On April 20, 2023, among other things, the charter school notified the parent that the student’s “severe and/or repeated infractions of the school’s discipline code warranted expulsion from the school” and scheduled a disciplinary hearing for April 25, 2023. Subsequently, the district scheduled a manifestation determination hearing for April 27, 2023.

On April 25, 2023, after receiving notice of the disciplinary hearing and the manifestation determination hearing, the student stated that “you and everyone at school make me want to commit a school shooting and or worse actually and I’m not joking either”. After two additional messages, the student stated “that he was joking and did not actually think that”.

As a result of the disciplinary hearing and the determinations of the manifestation determination review (MDR) team, “the student remained expelled from the district’s charter school…”. Among other things, “the MDR team determined that the behavior that led to the incident in question was not caused by, nor did it have a direct and substantial relationship to the student’s disability” 42

Besides the threats of shooting others, the decision does not make it clear whether and/or what additional conduct may have been the subject of the district’s disciplinary proceeding and MDR determination.

42

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The parent subsequently filed a due process complaint notice requesting an expedited impartial hearing to challenge the outcome of the MDR. Among other things, the parent asserted “that the student was suspended” “for behaviors that were clear manifestations of his disability”; “that the MDR team improperly concluded that the student’s behaviors were not a manifestation of his disability and improperly expelled the student following the MDR”. The parent requested that the determination of the MDR team “be reversed and that the student’s behaviors be declared a manifestation of his disability”, “that the expulsion be expunged from the student’s permanent record”, that the student be “immediately reinstated” at the charter school, that the already initiated “evaluation process be expedited,” and “that the CSE reconvene to explore a more appropriate placement for the student”.

Upon review, the IHO found that the MDR team had engaged in “procedural deficiencies” and “further found that the MDR team incorrectly determined that the student’s behavior was not a manifestation of his disability”. As relief, among other things, the IHO “ordered that the student’s expulsion from his charter school be expunged from his record”. He also ordered the CSE to reconvene to develop an IEP “consistent with his decision” and to conduct an FBA and BIP, “if appropriate”. He further, directed the CSE to consider whether the student’s classification should be changed and to consider the classification of “emotional disability”. The district appealed on a number of grounds.

The State Review Officer (SRO) determined that the “procedural deficiencies” referenced by the IHO, even if true, were not sufficient to invalidate the conclusion of the MDR team and that at least two of them were not raised in the parent’s due process complaint notice.43 These “deficiencies” included and/or involved the completion of the MDR team worksheet, that the parent’s contributions at the MDR ream meeting were not recorded, that the executive director of the charter school and the director of student support services had a discussion “prior to the MDR [proceeding] regarding the potential long-term suspension or expulsion of the student as a result of the disciplinary proceedings”, “that the parent did not allege that the district failed to implement the October 2022 IEP”, that the MDR team members reviewed some/all documentation prior to the meeting, that the absence of an attendee’s verbal input during the MDR team meeting “negates” the person being a “participant” at the MDR team meeting, and that “the IHO improperly exceeded his jurisdiction in [the] matter by determining deficiencies in the drafting of the IEP”, as such requirement was changed by 2004 IDEA amendments.

The SRO drew a distinction here between the kind of “procedural deficiencies” raised by the parent and relied on by the hearing officer and the procedural requirements set forth in State regulations for an MDR. With respect to the latter, the SRO concluded that the “necessary procedural requirements” included the timing of the MDR team meeting; that a MDR team meeting must be conducted in a meeting with all of the required participants; that the student receive the due process and hearing requirements set forth in State regulations; and that the MDR team must review all relevant information in the student’s file including the IEP, teacher observations and any relevant information provided by the parents. See 8 NYCRR 201.4(a)(3); (b)-(c). Upon review, the SRO found that the district had complied with all of these procedural requirements.

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The SRO further found that the IHO’s ultimate substantive finding – that the student’s conduct was a manifestation of his disability – was supported by the hearing record but that this conclusion should be reached “under different reasoning”.

The SRO reported that the school psychologist “reasoned that the conduct was not a manifestation because none of the student’s previous school suspensions were reasonably related to threats of school shootings” and also were not impulsive. She also felt that “neither she nor the student’s teachers could have anticipated the two back-to-back threats to commit a school shooting that were made by the student”. However, the SRO reviewed the testimony of the district’s school psychologist and pointed to where the student had threatened people, harassed, and “used threats and slurs”, was “impulsive” or showed “impulsivity”. The SRO went on to say that in any event, “[w]hether or not the behavior was expected by school personnel was not particularly probative because in any circumstances it does not answer the question of whether it is related to a student’s disability”.

The SRO pointed to the fact that “[i]n its worksheet documentation, the reason that the MRD team provided for its determination that the conduct was not a manifestation of a disability was that the student was able to differentiate right and wrong”. The SRO pointed out that “whether the student was sufficiently aware of right and wrong with respect to the conduct in question…reflects a mode of MDR analysis that is no longer used” and cited to now changed language in federal law. See 20 U.S.C. Section 1415(k)(4)(c) [as amended April 29, 1999]. With that in mind, the SRO concluded that he was “not convinced that the MDR team was using the correct standard in its reasoning when the determination was made” The SRO advised that “[i]nstead, there need only be a direct and substantial relationship of the behavior to the student’s disability”. With respect to this, the SRO pointed out that during the 2021-22 school year and the 2022-23 school year, “there had been numerous incidents where the student had used inappropriate language towards his classmates and staff and had been suspended for it”; the October 2022 IEP referenced incidents and inappropriate languages, the need for “continuous counseling” “to work on social skills and socially appropriate behavior”, and the student’s “active efforts to remove himself from social media in order to avoid being tempted to send messages when bored”. The October 2022 IEP also advised that the student’s negative behavior “most frequently and consistently” occurred when the student was “at home, when he was not doing anything, and nothing was catching his attention”. Then the student “would verbally harass, threaten, and/or bully the individual target”. The SRO concluded that “[t]here is little question that the student’s behavior in April 2023 had a direct and substantial relationship to his disability which was described previously in his [October 2022] IEP as harassing, threatening and bullying other individuals, especially when alone and using social media or devices, and for which he was already receiving counseling services”.

As to the charter school staff, “who considered the severity of the threat made over several days and not targeted to an individual but to the entire charter school as demonstrative of a “change from the student’s behavior pattern targeted by the October 2022 IEP,” the SRO said that the 249

student appeared to continue to send the threatening texts to other individuals” and pointed to the student’s impulsivity. Here, the SRO said that the number of messages that the student sent at a time “was indicative of his “impulsivity” and pointed out that the “school psychologist conceded at the impartial hearing that the student’s April 20, 2023 threat could have been considered impulsive. With respect to the statement by the district that “repetition” after investigation meant that the student was not impulsive, the SRO said that this could also be interpreted as “very impulsive”.

The SRO further said that “[t]here is also other evidence in the hearing record which indicates that the student’s behavior pattern targeted by the October 2022 IEP was evolving and escalating”. Consistent with the SRO’s view of the situation, he found that the “clear escalation” of the student’s behavior pattern “[were] not so distinguishable from the socially inappropriate behavior in his IEP as … to lack a direct or substantial relationship to his disability”. The SRO described himself as “not convinced that the student’s conduct was not a manifestation of the student’s disability as there were considerable similarities to behavioral problems that the student was already experiencing which the charter school was attempting to address through special education services”.

“Accordingly,” the Court found that “there[was] insufficient reason to overturn the IHO’s conclusions” that the student’s conduct was a manifestation of the student’s disability.

Application of a Student with a Disability, Appeal No. 11-034 Dispute: Was the district’s discipline-related manifestation determination review (MDR) team properly constituted and did it comply with its obligations under the law.

Conclusion: The SRO held that the district’s discipline-related MDR team was not properly constituted and that it did not comply with its obligations under the law.

Basis of the SRO’s Decision: “If a district is considering a disciplinary change in placement for a student with a disability, the district must conduct a manifestation determination review (MDR) meeting within 10 days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct. A MDR meeting must also be conducted within 10 school days after a superintendent or impartial hearing officer decides to place the student in an interim alternative educational setting (IAES). The participants at the MDR meeting must include a district representative, the parents, and the relevant members of the CSE as determined by the parent and the district. State regulations additionally require that the parent must receive written notification prior to any manifestation team meeting to ensure that the parent has an opportunity to attend. Further, State regulations require that such written notice inform the parents of the purpose of the meeting, the names of the people expected to attend, and the parent’s right to have relevant members of the CSE participate at the parent’s request.

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“Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the manifestation team must review all relevant information in the student’s file including the student’s IEP, any teacher observations, and any relevant information provided by the parents to determine if (1) the conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or (2) the conduct in question was the direct result of the school district’s failure to implement the IEP”. “If the result of the MDR is a determination that the student’s behavior was not a manifestation of his or her disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities. However, if the result of the MDR is a determination that the student’s behavior was a manifestation of his or her disability, the district’s CSE is required to conduct a functional behavioral assessment (FBA) and implement a BIP, or if the student already has a BIP, review the BIP and modify it as necessary to address the behavior. Except under special circumstances as defined in the IDEA and regulations, the district must also return the student to the placement from which he or she was removed or suspended. If the manifestation team determines that the student’s conduct was the direct result of the school district’s failure to implement the student’s IEP, the district must take immediate steps to correct the deficiencies in the implementation of the student’s IEP.” See generally 34 CFR 300.530-536; 8 NYCRR Part 201.

The IHO “issued a decision upholding the manifestation team’s determination that the student’s behavior [during the incident in question] was not a manifestation of his disability”.

The parent appealed to a State Review Officer (SRO). The SRO, first determined that “the hearing record [did] not clearly indicate when the manifestation team met to conduct the MDR”. See 34 CFR 300.530(e)(1); 8 NYCRR 201.4(a). The SRO also found “that there [was] no evidence that the parent participated in the MDR meeting.” See CFR 530(e) (1); 8 NYCRR 201.4(b). Regarding this, the SRO pointed to the fact that “aside from a single notation that the district called and left a message …there is no evidence documenting the district’s efforts to attain the parent’s participation in the MDR”. See id. The SRO concluded that “scanty evidence regarding the district’s compliance with the procedures for conducting the MDR, including its efforts to obtain the parent’s participation may not suffice to uphold the determination of the MDR”.

With respect to the first element of the manifestation determination, the extent to which the conduct in question was caused by or had a direct and substantial relationship to the student’s disability, (see 34 CFR 300.530[e][1][i]; 8 NYCRR 201.4[c][1]) the SRO determined that “the hearing record does not clearly indicate what information the manifestation team considered, whether the parent attended, when the MDR was conducted”, and “[that] the information developed at the impartial hearing was contradictory”. With this in mind, the SRO “declin[ed] to adhere to the conclusion that the student’s behavior at the time of the …incident was not caused by or had a direct and substantial relationship to the student’s disability”. Additionally, the SRO “[found] that the IHO’s decision to uphold the district’s manifestation determination with respect 251

to the relationship of the conduct in question to the student’s disability” was not adequately supported by evidence contained in the hearing record”.

With respect to the second element of a manifestation determination, whether the conduct in question was the direct result of the district’s failure to implement the student’s IEP (see 34 CFR 300.530[e][1][ii]; 8 NYCRR 201.4[c][2]), the SRO found that “the hearing record lacks testimonial or documentary evidence that explains which IEP was reviewed during the MRD or how the manifestation team reached its determination regarding whether the student’s conduct may have been a failure to implement the student’s IEP”. “Consequently”, the SRO concluded “that the hearing record [was] inadequate to support a determination regarding whether the manifestation team appropriately concluded that the November 2010 conduct in question was or was not the direct result of the district’s failure to implement the student’s IEP”.

With respect to whether additional evaluations were appropriate, the SRO said that the district convened the CSE, modified the student’s IEP, and developed a BIP but that there was no indication regarding whether an FBA was conducted prior to developing the student’s BIP or whether the manifestation team reviewed such information prior to arriving at its manifestation determination. Therefore, the SRO “encouraged the district to consider, if it has not already done so, conducting additional evaluation of the student that includes but is not limited to an FBA in order to ascertain the contextual factors that contribute to the student’s negative behaviors and probable consequences that serve to maintain them”.

With all of the above in mind, the SRO annulled the IHO decision. He further ordered “that the district shall, unless the parties otherwise agree, reconvene the manifestation team to reconsider whether the student’s behavior during the [incident in question] was (1) caused by or had a direct and substantial relationship to the student’s disability; or (2) the direct result of the district’s failure to implement the student’s … IEP.

MISCELLANEOUS OSEP Dear Colleague Letter on Implementation of IDEA Discipline Provisions, # 22-01 (July 19, 2022) Purpose of the OSEP Dear Colleague Letter: As a part of the beginning of the 2022-23 school year, the Office of Special Education Programs (OSEP) wrote that the Department of Education “is particularly concerned with disparities in the use of discipline for children with disabilities and the implementation of IDEA’s discipline provisions”. It issued its Dear Colleague Letter (DCL) and two accompanying guidance documents to provide current information and questions and answers relating to discipline, IDEA, and students with disabilities.

OSEP referenced its August 1, 2016 DCL which “highlighted data demonstrating that many children with disabilities, particularly Black children with disabilities, were subjected to 252

disproportionately high rates of disciplinary removals”. OSEP said that “[d]espite the evidence that using positive, proactive strategies can reduce rates of discipline and improve school climate and student outcomes, there remain notable disparities … in the use of school discipline for children with disabilities compared with their nondisabled peers and for children of color with disabilities compared with all other students”. OSEP said that “[t]he use of exclusionary disciplinary practices places large numbers of children with disabilities at risk for short- and longterm negative outcomes, including lower achievement and increased likelihood of not graduating”. OSEP pointed out that, as indicated below, since the issuance of its 2016 DCL “disparities in the use of exclusionary discipline, including both short-term and long-term removals have continued”.

OSEP pointed out that according to the Department’s most recent Civil Rights Data Collection 44 for the 2017-18 school year: •

“Preschool students served under IDEA accounted for 22.7 percent of total preschool enrollment but 56.9 percent of preschool students who were expelled”;

•

“School-age students with disabilities served under IDEA represented 13.2 percent of total student enrollment but received 20.5 percent of one or more in-school suspensions and 24.5 percent of one or more out-of-school suspensions”;

•

“Students with disabilities served under IDEA made up 80.2 percent of the students subjected to physical restraint and 77.3 percent of students subjected to seclusion, despite making up only 13.2 percent of students enrolled in public schools”.

Additionally, according to “Section 618” data, 45 during the 2019-20 school year, Black children with disabilities made up 17.2 percent of children with disabilities aged 3-21 served under IDEA yet accounted for 43.5 percent of all children with disabilities aged 3-21 served under IDEA who were suspended out of school or expelled for more than 10 school days”.

TIMEOUT ROOMS, RESTRAINTS, AND SECLUSION A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024) Issue: Did the parent set forth a claim of discrimination in violation of Section 504 or the ADA.

44 45

This data appears to include students with disabilities under Section 504.

This data appears to exclude students with 504 plans.

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Dispute: Does a violation of Section 504 or the ADA lie in circumstances where the record shows that the school district did not act with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Conclusion: A violation of Section 504 or the ADA requires that the record show that the district acted with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Key Take Away: Denial of FAPE is not a 504 or ADA violation, unless the district acted with deliberate indifference, bad faith, or gross misjudgment. In this particular case, the parent did not show that a violation of a free appropriate public education (FAPE) stemming from the District’s failure to comply with relevant State regulations relating to the time out room constituted deliberate indifference, bad faith, or gross misjudgment.

Reasoning: The student in this case has been diagnosed with ADHD and an Oppositional Defiant Disorder.

During the relevant time period, the student was in kindergarten to the third grade.

The student began kindergarten in the 2017-18 school year in a non-special education program.

At the beginning of the school year, because of his “challenging behavior”, the school referred him for a Functional Behavioral Assessment (FBA) and recommended that “a formal Behavioral Intervention Plan [BIP] be generated”. Among other things, the BIP recommended that “if [the student’s] behavior escalated to a point where he became physical, removal from the environment might be required and that such removal should be executed by a trained staff utilizing a team approach”. If removed, the student “should be moved to a safe location close by, given the opportunity to deescalate, and reintroduced to his class when the team determined he was ready”. The location was called “the peace room”.

The school district’s CSE met in November 2017. It found the student eligible for special education as a student with an emotional disability. During the classroom observation conducted as a part of the CSE’s evaluation, “the student was reported to have threatened to slash a female in the face with a fist full of colored pencils”. A psychiatric report prepared as a result of the student’s initial evaluation “recited the student’s history [to that date] in kindergarten including his cursing at teachers, requiring physical restraints, hitting, biting, kicking and throwing objects in the classroom, threatening other students and trying to stab them with pencils or scissors, and attempting to run out of the classroom”. The CSE also considered a psychiatric evaluation that was provided by the parents and that was consistent with the other information the CSE possessed.

The November 2017 CSE meeting recommended that the student be placed in a special education environment. This included “an integrated co-teaching program with two teachers and a kindergarten aide in the classroom”. Additionally, the student was provided with counseling, a social skills group, psychology consultations with the student’s teachers, and a transition plan to change to the new program. The CSE was concerned that it did not understand what was causing 254

the student’s conduct and wanted to come up with a plan to address that. “At or during the CSE meeting, the school psychologist created a positive behavior reinforcement plan and explained that to the parent. Additional supports were provided to the student during kindergarten which in included the school psychologist meeting with a social worker and the parent “almost on a weekly basis [from October to January] concerning behavioral strategies being used in school to address [the student’s] behaviors”.

During kindergarten, the student’s teachers “would sometimes remove [the student] to the peace room, and need to restrain him". The parents were aware of the use of the peace room and of the use of restraints and were notified when such used. The parents were also aware of the peace room policies and received information about them. The student completed kindergarten in the district’s recommended program.

The CSE met in March 2018 to develop the student’s IEP for the 2018-19 school year when the student would be in the first grade. Meeting reports indicated that the student was “making good progress in his special education placement, although he was occasionally still engaging in high intensity misbehaviors”. At the meeting, the CSE “elevated the level of [student] support” for the next year. The CSE recommended “an increase in integrated co-teaching from three to four hours a day and a 1:1 aide for six hours and 15 minutes each day to be with [the student] during lessons, meetings, and independent work, and specials, gym, art, lunch, and recess”.

During the first semester of the first grade, the student’s parent “regularly communicated with school staff” and received “reports about [the student’s] behavior”. The mother concluded that although the student “sometimes needed a break or sometimes had to be removed from class” that “things were going reasonably well.” “School staff were optimistic that their interventions were working.”

‘During the second semester of the student’s first grade year, the student “was engaging in disruptive and aggressive behaviors on a daily basis, including trying to leave the class or the school premises, throwing objects in class, refusing to get up off the floor, and kicking, hitting, punching, and biting”. This was communicated to the parent as well as how the district responded.

The CSE met again in March 2019 in advance of the student’s second grade year. The student’s BIP was “updated”. Additionally, “the CSE recommended additional services including having the school psychologist come to the classroom four hours a week to help teachers assist the student”.

After the CSE meeting, and for the balance of the first grade, the student’s behaviors “continued to escalate”. The student was “seriously hurting staff and threatening to do so”. Although the student’s “team” “did their best to provide [the student] with educational programming – including providing instruction in the peace room when [the student] would accept it – but had to scale back and remove demands on [the student} to address the safety concerns caused by his conduct”.

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The CSE met next in May 2019. At that meeting, the CSE felt that “some of the strategies being used to address [the student’s] behaviors were instead reinforcing them”. It recommended that the student “be placed in a therapeutic out of district program for second grade because the school could not safely manage his behaviors”. The parents asked the CSE to give the student “another chance” on the basis that his behaviors were “now under control and he would be safe to stay for second grade”, which the district “accommodated”. The district also provided the parent with a list of New York State-approved therapeutic programs. In June, the district “developed an updated FBA and BIP at the parent’s request”.

The CSE met in July of 2019 and reviewed the progress of the search for a “therapeutic out of district placement” for the student. The parent “had not approved either of the two programs she had visited,” one which involved a trial period and wished that the student would be able to attend the district’s school for second grade; this, on the basis that the student had “started taking medication” and that his behavior “had not been a problem” at the summer program he had attended. As an “accommodation” the district agreed that the student could return to school under the program recommended by the March 2019 CSE. This, while the parent continued to look for a therapeutic out of district program. In the event that the parent was unable to find a program that she approved of, and if the student’s behavior “retuned to the level of the preceding year”, the CSE advised that “it would need to recommend pursuit of the therapeutic out of district placement”.

The student’s behaviors continued at the beginning of the 2019-20 school year when the student was in the second grade – including “hitting, threatening, eloping, climbing on furniture, threatening to harm himself, kicking biting, and cursing”. The student was no longer on the medication that he had been taking during the July CSE meeting.

Because of “multiple suspensions”, the district held a further CSE meeting at the end of September 2019 “during which it was reported that [the student’s] negative behaviors had returned to the level of the prior spring; that staff had scaled back academic demands” for the student as otherwise, the student displayed “physically aggressive behaviors that were a safety risk to himself and others; [and] that school staff were unable to help [the student] regulate his emotions”. The CSE concluded that the student “needed a smaller, more structured environment with continuous therapeutic support” and recommended that the student be placed in such a day program. Pending such placement, the CSE recommended that the student either receive “four hours of daily home instruction” or “enroll in a transitional intensive day treatment [IDT] program”. “Following the meeting, the student’s special education teacher, the school psychologist and the parents visited the IDT program. The student attended the IDT program and then was “accepted and transitioned into a therapeutic out of district program … that [the parent] had approved. With new medication, the student “did well” at the new therapeutic day placement.

The student’s mother requested an impartial hearing on October 15, 2019 asserting the violation of the IDEA, Section 504, the ADA and the Regulations of the New York State Education 256

Department. The parent claimed that the district had violated Section 504 and the ADA “by repeatedly excluding [the student] from his classroom and isolating him from his peers because of his disability; failing to provide him with appropriate behavioral interventions as a reasonable accommodation resulting in the denial of reasonable access to the District’s programs, … and insisting that [the student’s] parents accompany him on field trips”. Among other things, the parent sought 405.3 hours of compensatory education.

On March 10, 2021, the IHO found that the student “was not denied a free appropriate public education (FAPE) under the IDEA, Section 504, or the ADA and denied [the parent’s] request for relief”. Regarding the “peace room”, the IHO found “no violations of State regulations”.

Regarding the IDEA, the IHO found that the student’s “educational program was appropriate based on his evaluations” and that no procedural inadequacies impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or cause a significant deprivation of educational benefits. The IHO concluded that “[u]nder Section 504 and the ADA, the student was not denied a FAPE, or excluded from participation in or denied the benefits of the district’s program by reason of his disability”.

The parent appealed the IHO’s decision to the Office of State Review (OSR). Regarding the parent’s claims under Section 504 and the ADA, the SRO pointed out “that it had no jurisdiction to review any portion of the parent’s claims regarding violations of section 504 or the ADA”.

Regarding the parent’s claims about the “peace room” , the SRO held that the district’s policies “did not comply with State regulations, because the policy lacked required specifics such as prohibitions on placing a student in a locked room or a room in which the student cannot be continuously observed; circumstances under which the timeout room may be used; data collection to monitor the effectiveness of the use of the timeout room; information that would be provided to parents; and staff training on the policies and procedures on the use of the timeout room”. Further, the SRO found that “the student’s IEPs did not reference the use of the timeout room or the maximum amount of time the student would need to be in the room as a behavioral consequence”. The SRO also found that, while “well-meaning, the use of the peace room for multiple purposes and in response to varying precipitating factors was itself problematic as the room ultimately might have come to reinforce the student’s escape/avoidance behaviors”.

The SRO further concluded that the use of the peace room resulted in “lost educational time” and a denial of a FAPE.” Regarding physical restraints, the SRO held that there was an “insufficient basis in the hearing record to modify the IHO’s determination that the district’s use of restraints on [the student] was appropriate”. The SRO also found that the district used improper procedures before placing the student in the IDT program”. Regarding the parent’s request for compensatory education, the SRO found that the student was eligible to receive 94.8 hours of compensatory tutoring – a reduction from the requested 405.3 due to the fact that the SRO found a loss of educational time only as a result of the use of the timeout room and the “improper removal” of the student to the IDT program.

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The parent commenced this action, asserting a violation of Section 504 and the ADA. Among other things, the parent sought relief asserting the district’s “repeatedly unlawful use of restraints and seclusion” and the student’s consequent inability to access his education for 405.3 hours of time from kindergarten through the end of second grade.

The Court began its analysis explaining that “[t]he ADA and Section 504 both protect qualified individuals with a disability”. The Court further explained that “[b]ecause the standards adopted by the two statutes are nearly identical, courts in this circuit consider the merits of these claims together”. Regarding this, a “[a] plaintiff asserting a discrimination claim under the ADA or Section 504 must show that (1) plaintiff is a qualified individual with a disability, (2) plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion or discrimination was due to plaintiff’s disability”. The Court advised that “discrimination can include the failure to provide a reasonable accommodation”. In this case, the Court said that “there is no dispute that [the student] is a qualified individual with a disability or that the district is a public entity subject to the ADA and Section 504.”. The Court pointed out that in the special education context, “an ADA or Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate public education as compared to the free appropriate public education nondisabled students receive”. However, “because the ADA and Section 504 address discrimination against disabled students rather than incorrect or erroneous special education treatments, a plaintiff challenging a school district’s response to his disability can succeed only by demonstrating that a school district acted with bad faith or gross misjudgment.” The Court noted here that “courts have equated gross misjudgment with deliberate or reckless indifference”.

In this case, the “plaintiff argues “that the District discriminated against [the student] by (1) inappropriately using the time out room, (2) developing inappropriate behavioral programing, and (3) inappropriately using restraints”. The Court noted that while the SRO found that the use of the time out room “did not comply with State regulations and thus its use of that room deprived [the student] of a FAPE”, this “does not alone establish deliberate indifference” and that given that the student’s “behavior sometimes required his removal from the classroom” and that the student “was placed in the time-out room for physical safety reasons”, the violations of the time out room-related regulations “simply [do] not rise to the [required] level of deliberate indifference to the student’s needs”. “Likewise,” the Court said while “the removals negatively impacted [the student’s] educational programming and may have reinforced his maladaptive behaviors” may have shown that the district could have made “better or different decisions” it does not show that the District “appreciated that it was likely violating [the student’s] rights but did not care”. Further, the Court concluded that the plaintiff had not shown that “the district was deliberately indifferent in its development of behavioral programming or its use of restraints”.

Regarding this, the Court pointed to the District’s “close attention to [the student’s] needs through constant meetings, communications, adjustments …”; that “[s]chool personnel acted diligently and thoughtfully” regarding the student; “kept in close contact with his parents; met with them regularly to discuss the student’s behavior and how it could be addressed, carefully 258

considered the reports and other information provided, made modifications in attempts to improve the situation; and accommodated [the parent’s] request” to have the student “remain at the school” notwithstanding the CSE’s view that the student “needed a therapeutic out of district program”. The Court said that “[t]he record shows, as the SRO held that the district’s intentions were well-meaning, appropriate and thoughtful – “a mindset inconsistent with a claim of deliberate indifference”. The Court concluded that “plaintiff has not provided evidence from which a rationale factfinder could conclude that the District intentionally discriminated against [the student] in violation of Section 504 or the ADA”.

The Court granted the school District’s request to dismiss the parent’s case.

Application of a Student with a Disability, Appeal No. 21-091 at pp. 42-50 Dispute: Did the district follow State regulation and guidance regarding time out rooms.

Conclusion: The SRO held that the district’s use of the time out room did not comply with State regulation and guidance and denied the student a FAPE. Basis of the SRO’s Decision: “According to State regulation, a time out room is an area for a student to safely deescalate, regain control and prepare to meet expectations to return to his or her educational program. 8 NYCRR 200.22(c). Time out rooms are to be used in conjunction with a BIP in which a student is removed to a supervised area in order to facilitate self-control or to remove a student from a potentially dangerous situation in order to teach and reinforce alternative appropriate behaviors.

However, a time out room may also be used as an emergency intervention in unanticipated situations that pose an immediate concern for the physical safety of a student or others. 8 NYCRR 200.22(c), (c)(3); See “Policy and Guidance on the Use of Time Out Rooms”; New York State Department of Education; Field Mem (April 1994); See also “Use of Time Out Rooms”, New York State Department of Education, (May 2011). In addition, a student’s IEP must specify when a BIP includes the use of a time out room for a student with a disability, including the maximum amount of time a student will need to be in a time out room as a behavioral consequence as determined on an individual basis in consideration of the student’s age and individual needs. 8 NYCRR 200.22(c)(2). All schools that use a time out room for behavior management are required to develop and implement policies and procedures related to the use of the time out room. 8 NYCRR 200.22(c)(1). State regulation also imposes requirements that schools document the use of the time out room, including information to monitor the effectiveness of the use of the time out room to decrease specified behaviors. 8 NYCRR 200.22(c)(8).” “State regulations also include specific requirements relating to the physical structure and features of a time out room. See 8 NYCRR 200.22(c)(5)-(7).” In particular, among other things, the regulations provide that “the physical space used as a time out room shall provide a means of continuous visual and auditory monitoring of the student; that staff shall continuously monitor the student; and they must be able to see and hear the student at all times”. Additionally, “wall and floor coverings are to be 259

designed to prevent injury to the student”. The time out room shall be “unlocked” and “the door must be able to be opened from the inside”, “Further, before implementing a BIP that will incorporate the use of a time out room, districts must afford parents the opportunity to see the physical space that will be used as a time out room and provide the parent with a copy of the school’s policy related to time out rooms. 8 NYCRR 200.22(c)(4).”

In November 2017, when the student was in kindergarten, a psychiatrist evaluated the student and found that the student met the criteria for diagnoses of an unspecified disorder of impulse control and an opposition defiant disorder (ODD). It was noted that diagnoses of ADHD and a disruptive mood dysregulation disorder needed to be ruled out. On November 30, 2017, the district’s CSE met and found the student eligible for special education as a student with an emotional disturbance.

During the 2017-18 school year, the record shows that the student was “removed from the classroom and to an administrator’s office on three separate occasions”. The behaviors involved were “climbing on furniture, kicking and punching staff and students, running away, and yelling and screaming profanities”.

The district began using what it called the ‘peace room” with respect to the student during the 2018-19 school year when the student was in the first grade. During that school year, the student was removed to the “peace room” “approximately 69 times with the length of time varying from five minutes to almost a full school day” and on some days, more than one occasion. During this period “[t]he reasons for the student’s removal to the peace room varied and included throwing a chair; kicking and hitting the teacher/aide, running outside of the school building, and throwing items in the classroom and at others”.

The district argued that the “peace room” served both positive and consequential functions.

However, the SRO said that “while the district’s intentions were well-meaning, the use of the peace room for multiple purposes and in response to varying precipitating factors was itself problematic as the room ultimately might have come to reinforce the student’s escape/avoidance behaviors”. Moreover, the SRO said that “the district could not choose to focus on the occasions when the room was used in managing behaviors that were less escalated to minimize the district’s use of the peace room” as a time out room so as to avoid the relevant State regulations relating to time out rooms. The SRO concluded that the peace room was a time out room as defined in accordance with State regulation. See 8 NYCRR 200.22(c).

Upon the SRO’s review, she determined, that contrary to State regulation [at 8 NYCRR 200.22(c)(1)], the hearing record did not contain any district regulations for the use of the peace room”. According to the SRO, “lacking from the district’s policy were specifics required by State regulation, such as provisions on placing a student in a locked room or a room in which the student cannot be continuously observed; circumstances under which the time out room may be used; limitations on the duration of time for which the time out room may be used; data collection to monitor the effectiveness of the use of the time out room; information that would 260

be provided to the parents; and staff training on the policies and procedures related to the use of the time out room”. Further, “[t]he district did not have a specific policy regarding how long a student could be placed in the peace room” and this was evaluated on a “case-to-case basis”.

See 8 NYCRR 200.22(c)(1)(iii).

The SRO pointed out that also “[i]n contravention of State regulation, the student’s IEPs do not reference the use of the time out room or the maximum amount of time the student would need to be in the room for a behavioral consequence”. See 8 NYCRR 200.22(c)(2). Additionally, “[a]lthough the BIPs do contemplate the student’s removal from the classroom if his behavior escalated to physical aggression, they did not specifically reference or describe the peace room or specify the maximum amount of time the student could be removed to the peace room”. The BIPs did not specify anything else about the location to which the student would be removed, or whether and by whom the student would be supervised while removed from the classroom. The SRO reported that the record indicated that “the district did, however, document the use of the peace room, including the dates of the student’s removal from the classroom to the peace room, the duration of the removal and the behavior which precipitated his removal.” Each time the “student was removed to the peace room; a behavior incident review report was completed detailing the incident”. The SRO pointed out, however, that “missing from some of the descriptions in the incident reports was the use of the extinction procedures outlined in the student’s [relevant BIP] prior to his removal.”

The assignment of the student to the peace room continued during the 2019-20 school, year when the student was in the second grade. The student was removed to the peace room approximately seven times before he was suspended on September 25, 2019. “The basis of the removals were climbing on furniture, punching and hitting staff, using a screwdriver and pointer as weapons, and biting staff”. The SRO pointed out here that “[b]ased upon the information contained in the behavior incident reports, it did not appear that district staff followed the procedures set forth in the [relevant] BIP prior to removal to the peace room”.

The district’s CSE met on May 31, 2019. Based on the discussion and review of documents at that meeting, it recommended an out of district therapeutic day placement. At a CSE meeting on September 27, 2019, after multiple school suspensions as a result of incidents of physical aggression, the CSE recommended four hours per day of home instruction. It also discussed an interim program at an intensive day treatment (IDT) if the parent declined the home instruction.

The student began attending an IDT on October 4, 2019. The student’s last day at this placement was November 27, 2019, and “he transitioned to an out of district therapeutic day treatment program” at that time.

The district’s behavioral specialist testified that the student used the time out room “a lot” and that although the time out room “may not have worked on eliminating problem behavior, it was a safer option for the student”. Similarly, the behavior specialist testified that the peace room “was effective in deescalating in situations but that it was not effective in decreasing [the student’s] behavior for permanent behavior change”. The behavior specialist also testified “that 261

there was no data taken to demonstrate the effectiveness of the use of the peace room with the student.” See 8 NYCRR 200.22(c)(1)(v). The SRO concluded that under such circumstances, “the district should have determined if the use of the time out room was itself becoming a reinforcer of the behaviors sought to be reduced through the BIP”.

The SRO pointed out that it was “concerning not only that the district failed to identify a maximum duration for which the student could be kept in the peace room but that in practice the duration was subject to a high degree of variability, and in some instances, it was used for extended periods of time”. The SRO further pointed out that “the hearing record supports a finding that the student was removed to the peace room for a variety of student behaviors and in some instances the removal occurred prior to attempts to utilize the extinction measures required by the BIP”.

Importantly, the SRO cited to “long standing guidance from the State Education Department” that “although the amount of time a student will need to be in a time out room will vary with the student’s age, individual needs and behavior management plan, careful monitoring of the amount of time a student is in a time out room is required to ensure that a time out room is not used to the detriment of a student’s educational progress. “Policy and Guidelines on the Use of Time Out Rooms”, at p. 3. Relative to this, the SRO agreed that “while the district did track the frequency and duration of the student’s removals to the peace room there is little evidence that the district assessed the impact of the student’s frequent removals from the classroom on his overall educational program or ability to access the curriculum.”

The SRO concluded that, based on the above, “the hearing record supports a finding that the district failed to follow regulatory requirements related to the use of time out rooms during the 2017-18, 2018-19 and 2019-20 school years and that its use of a time out room to manage the student’s behaviors resulted in lost educational time and a denial of a FAPE to the student”.

As a remedy, among other things, the parent requested 57.8 hours of compensatory education, which was based on the student’s being removed from the classroom for 57.8 hours of time. The SRO pointed out that the district “failed to put in contrary evidence regarding an appropriate compensatory education award” only arguing that it provided the student with a FAPE for the years in question. The SRO concluded that the district “failed to address its burdens as required under the due process procedures set forth in New York State law”. The SRO concluded that “[g]iven the district’s failure to meet its burden of production or persuasion on the issue of compensatory education services, the calculations put forth by the parent are unrebutted”.

With respect to the issues relating to the time out room, the SRO awarded the student 57.8 hours of compensatory tutoring. Since the student’s “primary area of need is behavioral”, unless the parties agree otherwise, the SRO ordered that the “compensatory tutoring services awarded be provided by either a special education teacher or a [Board Certified Behavior Analyst]”.

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Application of a Student with a Disability, Appeal No. 21-091 at pp. 47-48 Dispute: Did the district follow State regulation and guidance regarding the use of physical restraints.

Conclusion: The SRO held that there was insufficient basis in the hearing record to modify the IHOs’ determination that the district’s use of restraints on the student was appropriate.

Basis of the SRO’s Decision “State regulations authorize the use of physical restraints in emergency situations where alternative procedures not involving the use of physical force cannot reasonably be used. See 8 NYCRR19.5(a)(3); 200.22(d)(2)(i). Emergency is defined in the regulation as a situation requiring immediate intervention. 8 NYCRR 200.22(d). Emergency interventions may not be used as a punishment or substitute for systemic behavioral interventions that are designed to change, replace, modify, or eliminate a targeted behavior. 8 NYCRR 200.22(d)(2)(ii). Staff must be trained in safe restraint procedures and the school must document the use of emergency interventions for each student and notify the parent. 8 NYCRR 200.22(d)(3)-(4). Documentation shall include, among other things the location of the incident, the name of those involved, a description of the incident and intervention used, a statement as to whether the student has a current BIP, and details of any injury sustained by the student or others as a result of the incident.” Further, “the parent of the student shall be notified and documentation of emergency interventions shall be reviewed by school supervisory personnel, and, as necessary, the school nurse or other medical personnel. 8 NYCRR 200.22(d)(4).”

The SRO found that “the district policy on the use of restraints generally follows the requirements set forth in state regulation”. As such, “the use of restraints was an emergency intervention used as a last resort with respect to the student”. Testimony included the type and nature of the restraints typically used with the student. “The district behavior specialist also testified that he trained staff in the use of restraints and anyone who was trained could restrain the student.

During the 2017-18 school year, when the student was in kindergarten, the district staff documented the use of restraints seven times. During the 2018-19 school year, district staff documented the use of restraints on the student 16 times. During the 2019-20 school year, when the student was in the 2rd grade district staff documented the use of restraints on the student three times…” 46 The SRO pointed out “that the parent does not allege the occasions on which district staff used restraints were not emergency situations”. Nor did the parent argue that “the district could have reasonably used alternative procedures not involving the use of force”. To the contrary, the parent’s arguments were “largely related to the appropriateness of the student’s BIPs in that the 46

The SRO decision does not include an analysis of the extent to which the district’s documentation of incidents met the list set out in the regulations. See 8 NYCRR 200.22(d)(4).

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parent pointed to the use of restraints as evidence that the BIPs were ineffective”. The SRO held that “the evidence in the hearing record supports a finding that the BIPs developed for the student were appropriate” and the parent’s arguments “were speculative and without support in the hearing record”.

The SRO found that there was an “insufficient basis in the hearing record to modify the IHO’s determination that the district’s use of restraints on the student was appropriate”

DUE PROCESS IMPARTIAL HEARINGS IMPARTIAL HEARING OFFICERS (IHO) Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) Dispute: Whether the IHO should have dismissed the parents’ due process complaint notice with prejudice.

Conclusion: The SRO concluded that the IHO should not have dismissed the parents’ due process complaint notice with prejudice, vacated the order of dismissal, and remanded the matter for further proceedings.

Basis of the SRO’s Decision: In this case, the impartial hearing was scheduled for 12:00 p.m. “At 12:05 p.m. the IHO went on the record and stated she wanted to memorialize that this hearing was scheduled in accordance with the parents’ availability and they have not shown up”. “The IHO further stated that she and the district representative had sent independent emails to the parents telling them that we’re here, and we are available, and we’re waiting.” “The IHO noted that she was going to assume that she had not received a request for an adjournment or any contact from them and so would dismiss the matter because they had been offered the due process that they requested in their due process complaint and time had been taken away from other cases to give to the parents who hadn’t bothered to show up”. In a one-page decision issued later that day “the IHO dismissed the parents’ due process complaint notice with prejudice”. “The IHO stated that due notice was sent to all parties of the scheduling, and the district appeared as scheduled …” “The IHO further stated that the parents failed to appear at the hearing and did not contact the IHO or the district regarding their nonappearance.”

“Accordingly, the IHO determined that as parents were offered the due process they requested in their complaint, and as they failed to avail themselves of that due process to prosecute their complaint, and further, as they failed to notify anyone else who had taken time on their behalf of their intention not to appear, the matter is dismissed with prejudice”.

In their appeal to the Office of State Review (OSR) “the parents allege that they never sought to withdraw the matter but rather appeared at the impartial hearing 11 minutes late after their counsel emailed the IHO apologizing for their tardiness and notifying the IHO that he was calling into the hearing now”. At that time, however, “the IHO and district representative had 264

disconnected from the hearing already…” “In an answer, the district agrees with the parents that the IHO’s dismissal of the case after waiting only 5 minutes was premature”.

Upon review, the State Review Office (SRO) advised that “a dismissal with prejudice based on a party’s failure to comply with the directive of an IHO should generally be reserved for extreme cases”. The SRO indicated that “[w]hile the parents did not appear immediately at 12:00 p.m., by 12:05 p.m. the IHO was already stating on the record her intention to dismiss the matter due to the parents’ nonappearance”. The SRO continued that “[t]here is no indication in the hearing record that the IHO gave the parties notice that tardiness to the scheduled hearing date could result in the maximum sanction of dismissal with prejudice.” The SRO stated that the emails referenced by the hearing officer to the parents and their counsel “were not made a part of the hearing record”. Further, the SRO stated that “it [was] unclear if the emails were to the parents or to their counsel and the parents (and/or their counsel) were given very little time to respond to the emails”. The SRO also said that “it appears that no effort was made to contact the parents or their counsel via telephone to ascertain the reason they were not available on the phone at the exact start time of the hearing or whether they had attempted to appear but were unable to do so or had appeared late”. “The parents assert that their counsel emailed the IHO at approximately 12:11 p.m. appraising her of the parents’ tardiness and thereafter attempting to dial into the hearing only to find that the IHO and district representative were no longer available on the line”. The SRO added that “[t]here is no indication that, after learning that the parents’ counsel attempted to dial in to the hearing, albeit 11 minutes late, that any further opportunity was given to the parents or their counsel to explain their tardiness or to be heard as to why the IHO should not dismiss the due process complaint notice with prejudice.” The SRO continued that “[n]or is there any indication that the IHO weighed or considered lesser sanctions, such as allowing the district to proceed with the presentation of their evidence in the absence of the parents or dismissal without prejudice”. The SRO advised that “[w]hile the issue of limited resources and the dictates of fairness may support a dismissal with prejudice where a party has shown a pattern of dilatory conduct or disregard for an IHO’s directives, a dismissal with prejudice at the first instance of noncompliance by a party, without having ascertained facts that may be relevant to the sanction of dismissal, as happened here, is an abuse of discretion that deprived the parents the due process contemplated” by the relevant regulations.

The SRO, rejecting the parents’ request for a decision on the merits, pointed out that “there was no factual record upon which to base such a finding, and an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome”.

The SRO said that “the appropriate remedy for the IHO denying the parent (sic) her due process rights to a full and complete impartial hearing is a remand to continue the proceedings”.

Accordingly, the SRO vacated the IHO’s order of dismissal and remanded the matter for further proceedings.

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Bias - SRO: Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 Dispute: The parent asserts that the IHO was biased and that the IHO decision was insufficient.

The district disagrees.

Conclusion: The SRO concluded that the IHO was not biased against the parent and that the IHO decision was sufficient.

Basis of the SRO’s Decision: The SRO found that the IHO decision “set forth a detailed recitation of the facts,” “applicable legal standards,” and “controlling case law” and that “as a whole”, the decision “contains sufficient citations such that the lack of elaboration” in part of the decision did “not provide an independent basis for reversal.” Regarding the parent’s specific “examples” of bias,” the SRO found that “while the IHO nay have erred in specific determinations, such allegations of error are the subject of [the SRO’s review]” and “do not rise to the level of establishing bias by the IHO”.

RETROSPECTIVE TESTIMONY Application of the Bd. of Educ., Appeal No. 23-127 (Aug. 21, 2023) Dispute: Was retrospective testimony fatal to the district’s IEP. Conclusion: The SRO determined that retrospective testimony was fatal to the district’s IEP. Basis of the SRO’s Decision: This case concerns a student who was 17 years old during the 2020-21 school year and had been unilaterally placed at a private school since 2017. The student had received diagnoses of autism, attention deficit hyperactivity disorder (ADHD) and Tourette Syndrome.

A progress report dated November 2019 from the student’s private school advised that “the student received occupational therapy (OT) services daily during morning and afternoon “advisory”, in adaptive skills class seven periods per week, and during a weekly, three period community trip.”

“According to the school psychologist, the May 2020 CSE did not recommend OT, which she noted typically addressed fine motor skills”. Regarding this, she did not testify “that the CSE did not believe the student required OT services …” 47 The psychologist testified that instead “she informed the student’s parents that if the student had significant fine motor skills that impeded on his academic success, they could request an OT evaluation and OT services could be added if deemed appropriate”. The school psychologist also “indicated that the district specialized school would address vocational skills, daily living skills, and personal hygiene skills and were all equipped to handle the daily living skills training that the student required”.

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If she had testified to this effect, the district would have had the burden to show that such was the case.

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The SRO explained that “the thrust of the [the school psychologist’s] testimony [was] that the student could receive services available at the public-school site, but that were not actually listed on his IEP”. The SRO was clear that “this kind of after the fact justification of an IEP with the further possibility of potential services that are not listed on the IEP is impermissible”. See R.E. v. New York City Dep’t of Educ., 694 F. 3d 167, 186 (2d Cir. 2012); P.L. v. New York City Dep’t of Educ., 56 F. Supp 3d 147, 163 (E.D.N.Y. 2014). The SRO further pointed out that the IEP did not provide any information “detailing the student’s physical or sensory needs or his needs related to adaptive living skills”.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether it was appropriate for the student’s related services sessions to be 30 minutes or 60-minutes in duration and whether the Court, in part, relied on retrospective evidence.

Conclusion: The Court affirmed the decisions of the IHO and SRO and concluded that because of the student’s needs, 30-minute sessions of related services were appropriate. Further, the Court relied, in part, on impermissible retrospective testimony in its determination relative to the appropriate length of the student’s related services sessions.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

Plaintiff argues that the IHO and the SRO were “wrong to conclude that 30-minute sessions for related services were appropriate for [the student] as opposed to 60-minute sessions” and that the district “offered no credible testimony or evidence to explain why the CSE reduced [the student’s] related services mandates across the board”. The Court disagreed, stated that “the record is replete with evidence that [the student] struggles with staying awake, staying engaged, and being lethargic,” and cited evidence related to that. The Court further reviewed relevant conclusions and evidence set out in the IHO and SRO decisions. Regarding this, the IHO “concluded that the IEP’s 30 minutes (as opposed to 60-minute sessions) for [related services] were appropriate because [the student] emotionally and physically can’t sustain a longer period of time than that”. Along similar lines, the SRO concluded that while the student’s private school and the parent preferred 60-minute sessions, “the hearing record indicated that [the student] showed minimal and limited responses, slept frequently, was lethargic and medically fragile, and therefore was unable to emotionally and physically sustain a related services session longer than 30 minutes”.

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The Court also pointed to the SRO’s conclusion “that the record reflected that [the student’s] session lengths may be modified and increased as [the student] demonstrated progress throughout the year, which she deemed to be appropriately tailored to [the student’s] needs”.48 The Court found “the SRO’s conclusion to be reasonable and well-supported by the record and agree[d] that [the student] did not require 60-minute related services sessions in order to receive a FAPE”.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the student was appropriately grouped in the recommended special class.

Conclusion: The Court concluded that because of the parent and the student’s absence from the school the parent did not know how the student would be grouped in the special class placement.

In the alternative, the Court found that the student would have been appropriately grouped in the placement.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserts that the district did not recommend a classroom grouping of students with “similar individual needs” as well as similar academic levels and learning characteristics, levels of social development, levels of physical development and management needs. See 8 NYCRR 200.6(a)(3); 200.6(h)(2)-(5). In particular, the parent points to a district witness’s testimony that the students in the District 75 public school recommended for the student exhibited “a wide range of needs”.

The Court found the SRO’s position that the parent “waived her argument to glass grouping because she never visited the public-school placement, and thus could not know what the class grouping would be” persuasive. The SRO pointed out here that “the student did not attend the public school and the parent had not visited the public school since 2015”. Because of this, the Court concluded that “[a]ny evidence about how the student would have been grouped if he had attended the public school is necessarily and impermissibly retrospective”.

Even if this were not the case, the Court found that the CSE recommended an appropriate class grouping. In this regard, the Court cited to testimony that all of the students in the 12:1+4 classes and, in fact, in the entire District 75 school had a “wide range of needs”. The Court followed this up with the conclusion that “[i]t is evident [from the testimony] that the reason the students are Note that citing to such testimony is retrospective evidence with respect to the IEP, which is prohibited. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 185 (2d Cir. 2012).

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grouped together in the specialized District 75 school is because they all have a wide range of needs…and thus the [parent’s] allegation that the CSE did not recommend an appropriate class grouping fails on the merits. 49

Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) Dispute: Did the IHO err when he/she found that it was proper for the CSE to rely on evidence that was based on information received after the filing of the due process complaint notice.

Conclusion: The SRO concluded that the IHO properly relied on evidence that was based on information received after the filing of the due process complaint notice.

Basis of the SRO’s Decision: In this case, in the challenged eligibility determination, the IHO relied on the district’s determination that the student was not a student with a disability in the IHO’s conclusion that the student was not a student with a disability despite the fact that relevant documents and the CSE meeting were held subsequent to the filing of the parents’ due process complaint notice.

The parents objected to this on the basis of R.E. v. New York City Dep’t. of Educ., 694 F.3d 167,186-88 (2d Cir. 2012) and said that R.E. provided authority “that the district cannot rely on the CSE’s ineligibility determination document to defend its case after the filing of the parents’ due process complaint notice”. R.E. stands for the proposition that “with the exception of amendments made during the resolution period, the adequacy of an IEP must be examined prospectively as of the time of its drafting and that retrospective testimony regarding services not listed in the IEP may not be considered”. The SRO pointed out that the “matter [at hand] did not involve consideration of whether a particular IEP for the student was appropriate at the time the parents decided whether to make a unilateral placement”. The SRO further pointed out that the question in the matter at hand was “whether the student was eligible for special education as a student with a disability and therefore eligible for receipt of a FAPE by the district. Based on this, the Court concluded that “in order to determine if this student should have been classified as a student with a disability, consideration of the evidence with respect to the district’s eligibility determination is appropriate, even when that evidence comes to light during the impartial hearing”.

The SRO “decline[d] to find that the IHO erred in admitting and considering the evidence with respect to the district’s April 2022, eligibility determination”.

It is clear from the Court’s decision on the merits that the Court misunderstands the relevance of class grouping in the context of applicable State regulation. The purpose of this requirement is to ensure that students in a special class placement are similar to each other for teaching and learning purposes and not to ensure that a special class has a “wide range of needs”.

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Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) Dispute: Whether the IHO properly analyzed the sufficiency of the student’s IEP. Conclusion: The SRO vacated the IHO’s decision in relevant part based on the failure of the IHO to properly review the sufficiency of the student’s IEP and its reliance on retrospective testimony.

Basis of the SRO’s Decision: The parent’s due process complaint notice identified a number of specific and discrete areas in which the parent asserted that the student’s 2019-20 and 2020-21 IEPs were inadequate.

Upon review, the IHO concluded, among other things, that “consistent with the makings of a sufficient IEP, the September 2020 IEP included a statement describing the student’s present levels of performance, established annual goals designed to meet the student’s needs and enabled him to make progress, and provided for the use of special education services”.

Additionally, the IHO “found no issues with procedure of (sic) implementation related to the 2020-21 school year that warranted a finding of a denial of a FAPE”.

The IHO further “found that the evidence reflected that the student began showing a marked improvement towards the beginning of February 2020 which followed into the beginning of the following year”. “In addition, the IHO pointed to improvements reflected in the student’s testing results obtained in 2021 which were well above average and that testimonial evidence indicated other areas of improvement”. “In light of the evidence, the IHO concluded that the limited data offered together with the legally sufficient IEP demonstrated that the student was actually making progress and that the district offered the student a FAPE for the 2020-21 school year”.

The IHO also denied the parent’s request for compensatory education and also deferral of the student to the CBST. The SRO, upon his review of the IHO’s “FAPE analysis for the 2020-21 school year”, concluded that the IHO’s decision “was based on an application of an erroneous legal standard” which “constitute[d] reversible error” and therefore “must be vacated”.

The SRO pointed out that the parent focused on “discrete issues within the March 2021 due process complaint notice upon which to draw the ultimate conclusion regarding whether the district offered the student a FAPE” The discrete issues included such things as, but not limited to, whether the district “appropriately evaluate[d] the student in the areas of adaptive living skills and assistive technology”, “failed to develop an appropriate transition plan or postsecondary goals and the student’s September 2020 IEP failed to include appropriate transition goals”.

“An IHO is required to issue detailed findings on the discrete issues identified in a party’s due process complaint notice”. In this case, the SRO found that “[t]he IHO’s analysis of the parties’ claims … departed dramatically from this standard” and that [here] “rather than addressing each issue the parent raised in the due process complaint notice to determine whether the September 2020 IEP was appropriate and offered the student a FAPE for the 2020-21 school year, the IHO 270

found that evidence of the student’s subsequent progress during that school year led to the conclusion that the district offered the student a FAPE”.

The SRO explained that it was “well settled that the determination of whether an IEP offers a FAPE must be made by evaluating the IEP prospectively as of the time of its drafting” (See R.E. v.

New York State Dep’t of Educ., 694 F.3d 167, 186 [2d Cir. 2012]). In this case, the SRO pointed out that “[t]he IHO’s approach which focused solely on whether the student made progress after the development of the September 2020, appears to be results oriented – an approach rejected by the Second Circuit (R.E., 694 F.3d at 184-88).

Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) Dispute: Whether the provision of an English-speaking teacher assisted by a classroom paraprofessional who provides translation services, would, by itself, render the 12:1+1 special class with Yiddish as the language of service incapable of being implemented.

Conclusion: The SRO decided that it was not necessary to address this question as it was based on impermissible retrospective testimony.

Basis of the SRO’s Decision: “Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself”. “[S]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement”. “However, a district’s assignment of a student to a particular school site must be made in conformance with the CSE’s educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP”. “[C]laims regarding an assigned school’s ability to implement an IEP may not be speculative when they consist of prospective challenges to the assigned school’s capacity to provide the services mandated by an IEP”. “Such challenges must be tethered to actual mandates in the student’s IEP… [and] … such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than mere speculation that the school would not adequately adhere to the IEP despite its ability to do so”. “In order for such challenges to be based on more than speculation, a parent must allege that the school is factually incapable of implementing the IEP.” “Such challenges must be based on something more than the parent’s speculative belief that the assigned public-school site was not appropriate”.

The CSE recommended the student attend a full-time 12:1+1 special class in a district specialized school with Yiddish as the language of the service. The CSE also recommended the related services of OT and PT, both in English, and speech language therapy in Yiddish. The CSE also “determined that the student was eligible to receive services during July and August as part of a 12-month program wherein the student would receive the same special education program and services in Yiddish and English as recommended for the 10-month portion of the school year”.

“However, the resultant IEP also indicated that, if there was no provider available in the recommended language, the student should be provided interim services in English pending availability of a bilingual provider and should be placed in an interim monolingual class”.

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In this case, by affidavit testimony, “the student’s mother related that she visited the assigned school and was informed that the school did not have a bilingual Yiddish-speaking special education teacher for the months of July and August”. The principal of the assigned school confirmed that the school did not have a bilingual Yiddish-speaking special education teacher to teach the 12:1+1 special class for the months of July and August … “. “However, the principal indicated that there was a classroom paraprofessional in the student’s proposed classroom that spoke Yiddish and provided bilingual Yiddish instruction to all of the Yiddish speaking students in the class and translated the instruction into Yiddish after the instruction was orally recited by the teacher”.

The SRO concluded that the “[t]he testimonial evidence referencing a 1:1 Yiddish-speaking paraprofessional assigned to the student was impermissibly retrospective because that service was not listed on the student’s IEP” and likewise that the “most significant flaw” in the defendant’s argument “was that the district relied on the after-the-fact testimony regarding a bilingual paraprofessional to argue that the assigned school would do something different than the terms written into the … IEP which unambiguously stated that monolingual services would be provided instead as interim plan (sic) if the bilingual services called for in the IEP were unavailable”. The SRO said that “[t]he parents were not required to accept a written IEP that called for bilingual services, while at the same time indicating that such services would not be provided if the district lacked the requisite staffing”.

The SRO found that this defect “together with the district’s failure to describe the special education transportation services in the IEP” denied the student a FAPE. Bd. of Ed. of the Mamaroneck Union Free Sch. Dist. v. A.D., No. 17-3462-cv, 739 Fed.Appx. 79 (2d. Cir. 2018) Dispute: Whether the district’s testimony regarding counseling services was retrospective testimony and therefore not allowed.

Conclusion: The Court found that the district’s testimony regarding counseling services was retrospective testimony and therefore should not have been allowed.

Basis of the Court’s Decision: “The IEP must be evaluated prospectively as of the time of its drafting”. Consistent with this, “retrospective testimony” – that is, “testimony that certain services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement may not be considered”. At the same time, “testimony may be received that explains or justifies the services listed in the IEP”.50 In this case, the question was whether counseling services would have been provided to the student in the year in question. With respect to this, the district’s IEP for the student made no mention that the student would receive counseling services. The district claims that this was a Additional discussion regarding prospective and retrospective testimony may be found in R.E. v N.Y.C Dep’t of Educ., 694 F.3d 185-188 (2d Cir. 2012).

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“clerical error”. However, “the record [was] devoid of contemporaneous evidence that could substantiate [the district’s] claim that counseling was recommended in the IEP”.

Therefore, the testimony from the district’s witness “discussing what counseling services would have been provided to [the student in the year in question] falls squarely within the definition of retrospective testimony and cannot be relied upon in evaluating the IEP”.

SCOPE OF REVIEW Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023) Dispute: Whether the IHO’s determinations regarding certain issues were outside the scope of review of the impartial hearing.

Conclusion: The SRO concluded that the IHO’s relevant determinations were not outside of the scope of review of the impartial hearing.

Basis of the SRO’s Decision: “[I]t is impermissible for the IHO to simply expand the scope of the issues raised [at an impartial hearing] without the express consent of the parties and then base his or her determination on new issues raised sua sponte”. “[T]he parent’s due process complaint notice alleged that the CSE used insufficient evaluative information in its development of the IEP.” The IHO considered the question of whether the CSE failed to address in the student’s IEP his needs relating to the student’s seizures, stutter, or regulation.

Further, and with respect to implementation, the parent’s due process complaint notice set forth “that the district did not propose a district school that would appropriately implement the IEP”.

The IHO considered the question of whether, specifically, the district was required to prove that it was able to provide the student with a “bus lift, an adaptive chair, and staff to administer the seizure medication and address his seizures.”

The SRO found that “although the claims raised by the parent in the due process complaint notice were broader than what would have been ideal for the district to present its case in this matter, the general allegations [in the parent’s due process complaint notice] were sufficient to incorporate the more specific allegations addressed by the IHO in her decision”. The SRO concluded that therefore there was an insufficient basis to find that the IHO considered issues outside of the scope of review of the impartial hearing relating to the sufficiency of evaluative information and the implementation of the student’s IEP. Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the IHO err in reaching the question related to the assigned school site since it was not alleged in the parents’ due process complaint notice.

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Conclusion: The SRO concluded that the IHO did not err in considering the question related to the assigned school site.

Basis of the SRO’s Decision: “Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing”. “The IDEA and its implementing regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial; hearing”. “Indeed, the parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.” “To permit the parents to add a new claim after the resolution period has expired would allow them to sandbag the school district”.

In this case, “the parents’ due process complaint notice broadly claimed that the CSE did not recommend a placement that was appropriate or that could properly implement the IEP”. “While the due process complaint notice did not articulate a claim relating to an assigned school’s capacity to implement the IEP with great specificity, the language was sufficient to put the district on notice of the parents’ allegation”.

Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) Dispute: Whether the IHO should have dismissed the parents’ due process complaint notice with prejudice.

Conclusion: The SRO concluded that the IHO should not have dismissed the parents’ due process complaint notice with prejudice, vacated the order of dismissal, and remanded the matter for further proceedings.

Basis of the SRO’s Decision: In this case, the impartial hearing was scheduled for 12:00 p.m. “At 12:05 p.m. the IHO went on the record and stated she wanted to memorialize that this hearing was scheduled in accordance with the parents’ availability and they have not shown up”. “The IHO further stated that she and the district representative had sent independent emails to the parents telling them that we’re here, and we are available, and we’re waiting.” “The IHO noted that she was going to assume that she had not received a request for an adjournment or any contact from them and so would dismiss the matter because they had been offered the due process that they requested in their due process complaint and time had been taken away from other cases to give to the parents who hadn’t bothered to show up”. In a one-page decision issued later that day “the IHO dismissed the parents’ due process complaint notice with prejudice”. “The IHO stated that due notice was sent to all parties of the scheduling, and the district appeared as scheduled …” “The IHO further stated that the parents failed to appear at the hearing and did not contact the IHO or the district regarding their nonappearance.”

“Accordingly, the IHO determined that as parents were offered the due process they requested in their complaint, and as they failed to avail themselves of that due process to prosecute their 274

complaint, and further, as they failed to notify anyone else who had taken time on their behalf of their intention not to appear, the matter is dismissed with prejudice”.

In their appeal to the Office of State Review (OSR) “the parents allege that they never sought to withdraw the matter but rather appeared at the impartial hearing 11 minutes late after their counsel emailed the IHO apologizing for their tardiness and notifying the IHO that he was calling into the hearing now”. At that time, however, “the IHO and district representative had disconnected from the hearing already…” “In an answer, the district agrees with the parents that the IHO’s dismissal of the case after waiting only 5 minutes was premature”.

Upon review, the State Review Office (SRO) advised that “a dismissal with prejudice based on a party’s failure to comply with the directive of an IHO should generally be reserved for extreme cases”. The SRO indicated that “[w]hile the parents did not appear immediately at 12:00 p.m., by 12:05 p.m. the IHO was already stating on the record her intention to dismiss the matter due to the parents’ nonappearance”. The SRO continued that “[t]here is no indication in the hearing record that the IHO gave the parties notice that tardiness to the scheduled hearing date could result in the maximum sanction of dismissal with prejudice.” The SRO stated that the emails referenced by the hearing officer to the parents and their counsel “were not made a part of the hearing record”. Further, the SRO stated that “it [was] unclear if the emails were to the parents or to their counsel and the parents (and/or their counsel) were given very little time to respond to the emails”. The SRO also said that “it appears that no effort was made to contact the parents or their counsel via telephone to ascertain the reason they were not available on the phone at the exact start time of the hearing or whether they had attempted to appear but were unable to do so or had appeared late”. “The parents assert that their counsel emailed the IHO at approximately 12:11 p.m. appraising her of the parents’ tardiness and thereafter attempting to dial into the hearing only to find that the IHO and district representative were no longer available on the line”. The SRO added that “[t]here is no indication that, after learning that the parents’ counsel attempted to dial in to the hearing, albeit 11 minutes late, that any further opportunity was given to the parents or their counsel to explain their tardiness or to be heard as to why the IHO should not dismiss the due process complaint notice with prejudice.” The SRO continued that “[n]or is there any indication that the IHO weighed or considered lesser sanctions, such as allowing the district to proceed with the presentation of their evidence in the absence of the parents or dismissal without prejudice”. The SRO advised that “[w]hile the issue of limited resources and the dictates of fairness may support a dismissal with prejudice where a party has shown a pattern of dilatory conduct or disregard for an IHO’s directives, a dismissal with prejudice at the first instance of noncompliance by a party, without having ascertained facts that may be relevant to the sanction of dismissal, as happened here, is an abuse of discretion that deprived the parents the due process contemplated” by the relevant regulations.

The SRO, rejecting the parents’ request for a decision on the merits, pointed out that “there was no factual record upon which to base such a finding, and an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome”.

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The SRO said that “the appropriate remedy for the IHO denying the parent (sic) her due process rights to a full and complete impartial hearing is a remand to continue the proceedings”.

Accordingly, the SRO vacated the IHO’s order of dismissal and remanded the matter for further proceedings.

Bd. of Ed. of the Mamaroneck Union Free Sch. Dist. v. A.D., No. 17-3462-cv, 739 Fed.Appx. 79 (2d. Cir. 2018) Dispute: Notwithstanding that the parent did not raise a claim relating to counseling in its due process complaint notice, whether the district “introduced evidence relating to that issue and therefore “opened the door” to such issue and, by so doing, gave the parent the right to submit evidence that the counseling program offered to the student was inadequate.

Conclusion: The Court held that the district “opened the door” at the impartial hearing to counseling services and that as a result, the parent had the right to submit is own evidence regarding that issue.

Basis of the Court’s Decision: With respect to the IDEA, “the party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice unless the other party agrees otherwise” [see 20 U.S.C 1415(f)(3)(b)]. However, if at an impartial hearing, a party introduces evidence regarding an issue that is outside the scope of the due process complaint notice, it therefore is “opening the door” to the other party to rebut the evidence relied upon by the district relative to that issue. 51 In this case, the parent did not raise the issue of counseling in its due process compliant notice.

However, the district did raise “the issue of counseling in the due process hearings”; first, by addressing “the counseling issue in its opening statement” and second, by “elicit[ing] testimony from its witnesses …regarding the types of counseling support that would have been provided to [the student]’.

The court concluded that the district therefore “opened the door” to the adequacy of counseling services provided by the district and that the parent had a right to offer evidence relative to that issue.

Application of the Dep’t of Educ., Appeal No 21-184 (Oct. 27, 2021) Dispute: Whether the IHO erred by considering questions relating to annual goals, the student’s dyslexia, or the assigned public school’s ability to implement the IEP. Conclusion: The SRO concluded that the above issues were outside of the scope of the IHO’s review.

Additional discussion regarding the concept of “opening the door” may be found in M.H. v N.Y.C. Dep’t of Educ., 685 F.3d 217, 249-251 (2d Cir. 2012).

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Basis for SRO’s decision: Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. At the same time, issues not included in a due process complaint notice may be ruled on by the IHO when the district “opens the door to such issues with the purpose of defeating a claim that was raised in the due process complaint notice”.

Here, the SRO concluded that the parent’s due process complaint notice did not specifically raise issues regarding the sufficiency of the annual goals and supports and services to address the student’s reading difficulty; nor did it raise issues with the specific assigned public school’s ability to implement the proposed IEP. Further, the SRO concluded that the district did not open the door to issues regarding the sufficiency of the district’s annual goals and services to address the student’s reading needs or the assigned public school’s ability to implement the student’s IEP. Application of a Student with a Disability, Appeal No. 20-101, (8/3/20) Dispute: Parents assert that the IHO properly determined that the Churchill School was an appropriate placement. District asserts that IHO improperly analyzed the appropriateness of the unilateral placement subsequent to the finding that the district offered the student a FAPE. Conclusion: The SRO concluded that the IHO’s determination that Churchill was an appropriate placement was final and binding on the parties.

Basis for SRO’s decision: IHO evaluation of the adequacy of the student’s unilateral placement subsequent to a finding that a district provided a FAPE is not barred in circumstances where the district did not raise any legal or factual issues relative to the IHO’s conclusion regarding the adequacy of the unilateral placement.

Application of a Student with a Disability, Appeal No. 20-101 (8/3/20) Dispute: Which claims are properly before the SRO. Conclusion: Several of the claims raised by parents are outside the scope of the SRO’s review.

Basis for SRO’s Decision: State Regulations governing practice before the Office of State Review set forth that any issue not identified in a party’s request for review, answer, or answer with cross-appeal are deemed abandoned.

SUFFICIENCY OF DECISION Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) Dispute: Whether the IHO properly analyzed the sufficiency of the student’s IEP. Conclusion: The SRO vacated the IHO’s decision in relevant part based on the failure of the IHO to properly review the sufficiency of the student’s IEP and its reliance on retrospective testimony.

Basis of the SRO’s Decision: The parent’s due process complaint notice identified a number of specific and discrete areas in which the parent asserted that the student’s 2019-20 and 2020-21 IEPs were inadequate.

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Upon review, the IHO concluded, among other things, that “consistent with the makings of a sufficient IEP, the September 2020 IEP included a statement describing the student’s present levels of performance, established annual goals designed to meet the student’s needs and enabled him to make progress, and provided for the use of special education services”.

Additionally, the IHO “found no issues with procedure of (sic) implementation related to the 2020-21 school year that warranted a finding of a denial of a FAPE”.

The IHO further “found that the evidence reflected that the student began showing a marked improvement towards the beginning of February 2020 which followed into the beginning of the following year”. “In addition, the IHO pointed to improvements reflected in the student’s testing results obtained in 2021 which were well above average and that testimonial evidence indicated other areas of improvement”. “In light of the evidence, the IHO concluded that the limited data offered together with the legally sufficient IEP demonstrated that the student was actually making progress and that the district offered the student a FAPE for the 2020-21 school year”.

The IHO also denied the parent’s request for compensatory education and also deferral of the student to the CBST. The SRO, upon his review of the IHO’s “FAPE analysis for the 2020-21 school year”, concluded that the IHO’s decision “was based on an application of an erroneous legal standard” which “constitute[d] reversible error” and therefore “must be vacated”.

The SRO pointed out that the parent focused on “discrete issues within the March 2021 due process complaint notice upon which to draw the ultimate conclusion regarding whether the district offered the student a FAPE” The discrete issues included such things as, but not limited to, whether the district “appropriately evaluate[d] the student in the areas of adaptive living skills and assistive technology”, “failed to develop an appropriate transition plan or postsecondary goals and the student’s September 2020 IEP failed to include appropriate transition goals”.

“An IHO is required to issue detailed findings on the discrete issues identified in a party’s due process complaint notice”. In this case, the SRO found that “[t]he IHO’s analysis of the parties’ claims … departed dramatically from this standard” and that [here] “rather than addressing each issue the parent raised in the due process complaint notice to determine whether the September 2020 IEP was appropriate and offered the student a FAPE for the 2020-21 school year, the IHO found that evidence of the student’s subsequent progress during that school year led to the conclusion that the district offered the student a FAPE”.

The SRO further explained that it was “well settled that the determination of whether an IEP offers a FAPE must be made by evaluating the IEP prospectively as of the time of its drafting” (See R.E. v. New York State Dep’t of Educ., 694 F.3d 167, 186 [2d Cir. 2012]). In this case, the SRO pointed out that “[t]he IHO’s approach which focused solely on whether the student made progress after the development of the September 2020, appears to be results oriented – an approach rejected by the Second Circuit (R.E., 694 F.3d at 184-88).

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Application of a Student with a Disability, Appeal No. 20-083, June 26, 2020 Dispute: The parent asserts that the IHO was biased and that the IHO decision was insufficient.

The district disagrees.

Conclusion: The SRO concluded that the IHO was not biased against the parent and that the IHO decision was sufficient.

Basis of the SRO’s Decision: The SRO found that the IHO decision “set forth a detailed recitation of the facts,” “applicable legal standards,” and “controlling case law” and that “as a whole”, the decision “contains sufficient citations such that the lack of elaboration” in part of the decision did “not provide an independent basis for reversal.” Regarding the parent’s specific “examples” of bias,” the SRO found that “while the IHO nay have erred in specific determinations, such allegations of error are the subject of [the SRO’s review]” and “do not rise to the level of establishing bias by the IHO”.

TELEPHONIC HEARINGS/IN-PERSON HEARINGS “After Hours”: Application of a Student with a Disability, Appeal No. 20-009 (March 19, 2020) Dispute: The parent asserts that an impartial hearing officer (IHO) could not require a parent to appear in person at an impartial hearing; could not prohibit the taking of telephonic testimony, and could not decline to schedule an impartial hearing at 4:00 pm. The district disagrees Conclusion: The SRO concludes that there was insufficient support for the IHO’s findings that, in effect, the hearing could not be conducted “at a time and place that [was] reasonably convenient to the parents and child involved” (see 34 CFR § 300.515[d]; 8 NYCRR § 200.5[j][3][x]) Basis of the SRO’s Decision: The IHO dismissed the hearing request “for want of prosecution in a timely matter without prejudice” because the parent was not able to appear in person but by telephone and that because of her work schedule she was not available during regular school hours and, for the same reason, had requested that the hearing commence at 4 pm. The SRO explained that State regulations set forth the procedures for conducting hearings (see 8 NYCRR §200.5[j]), that “generally” “IHO’s are provided with broad discretion, subject to judicial and review procedures, in how they conduct an impartial hearing as long as they “’accord each party a meaningful opportunity’ to exercise their rights” and that the parties to a proceeding are generally required “to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing”. The SRO pointed out that IHOs “[have] discretionary authority to receive testimony by telephone provided that the testimony is made under oath and subject to crossexamination”. (see 8 NYCRR § 200.5[j][3][xii][c]). The SRO also pointed out that the IHO had “categorically refused” to allow the hearing to proceed without the parent’s attendance and had established a policy of requiring parents to attend hearings in person notwithstanding that it was the district’s burden to show that its program was appropriate. Relative to scheduling, the SRO pointed out that regulations require the hearing ‘be conducted at a time and place which is reasonably convenient to the parent and student involved” (see 34 § CFR 300.515[d]; 8 NYCRR 279

§200.5[j][3][x]) and “that State regulations do not restrict IHOs from scheduling hearings on days and at times when school is not in session”. In fact, the SRO wrote that “the IHO should consider whether it is necessary to schedule hearing dates outside of business hours, or on non-school days, or in locations other than those commonly utilized by the district, in order to comply with the regulatory obligation to timely issue a decision” and that “to ensure the prompt completion of the impartial hearing, it may be necessary for the IHO to issue subpoenas requiring witnesses to be available outside of standard school hours”. The SRO also pointed to State regulations that it said “explicitly authorized” telephonic (and presumably video) testimony to ease scheduling difficulties (see 8 NYCRR § 200.5[j][xii][c]).

The SRO concluded that there was “insufficient support for the IHO’s findings that, in effect, the hearing could not be ‘conducted at a time and place that was [reasonably] convenient to the parents and child involved’” (see 34 CFR § 300.515[d]; 8 NYCRR § 200.5[j][3][x]). As a consequence, the SRO concluded that the IHO did not conduct the impartial hearing in a manner with due process, and that the IHO erred in dismissing the parent’s complaint.

TIMELINES AND TIME REQUIREMENTS Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024) Issue: due process hearings -- timelines and time requirements Dispute: Was the IHO’s failure to make a timely decision on a parent’s due process complaint notice by itself a violation of the student’s right to a FAPE. Conclusion: The IHO’s failure to make a timely decision on a parent’s due process complaint notice was not in and of itself a violation of the student’s right to a FAPE. Key Take Away: Although State regulations require that an IHO make a decision on a parent’s due process complaint notice generally 30 days after a due process complaint has been filed, the fact that the IHO did not make a decision for nearly a year was not sufficient to deny the student a FAPE because such by itself was a procedural violation and the IEP was otherwise sufficient.

Reasoning: The student in this case is a minor and is eligible for special education as a student with multiple disabilities.

The parent first requested an impartial hearing based on a denial of a FAPE. After “nearly a year,” and on May 22, 2021, the IHO concluded that the student was denied a FAPE. The district appealed the IHO’s decision to a State Review Officer (SRO). On July 30, 2021, the SRO reversed the IHO’s decision; holding that the parent “forfeited” a claim related to the accessibility of the placement school “and that the [district] had not otherwise denied [the student] a FAPE”. The parent sued in District Court, which “granted [the district’s] motion for summary judgement, upholding the SRO’s decision”. The parent appealed the District Court’s decision to the Court of Appeals.

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The parent asserts “that because the administrative proceedings were not timely conducted [the student] was denied a FAPE”. The Appeals Court pointed out that State Regulations “require an IHO to render a decision not later than 45 days from the day after the expiration period of the resolution process … , which is generally 30 days after a complaint has been filed”. The Appeals Cout further pointed out that “even though the IHO issued a final decision nearly a year after [the parent] filed her due process complaint”, this procedural violation did not deny the student a FAPE. In this regard, the Court explained that “the parents are entitled to reimbursement for procedural violations [which this was] only if the violations impeded the child’s right to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process or caused a deprivation of educational benefits”. “In other words,” the Appeals Court said that “where the Individualized Education Program (IEP) itself was adequate, any delay [such as the one here] in resolving a parent’s challenge to it cannot have prejudiced her child’s education”. The Appeals Court concluded that “[b]ecause [it] agree[d] with the District Court that the IEP was adequate the IHO’s delay did not deny [the student] a FAPE”.

ELIGIBILITY FOR SPECIAL EDUCATION SERVICES CLASSIFICATION Mahopac Cent. Sch. Dist. v. New York State Educ. Dept., 2025 WL 1954096 (3rd Dept. 2025) Issue: eligibility for special education services Dispute: Whether students with disabilities are eligible to receive special education services up to the age of 22.

Conclusion: The State Appeals Court concluded that students with disabilities are eligible to receive educational services up to the age of 22.

Key Take Away: Parents and districts must be aware that resident students with disabilities in New York State are eligible to receive special education services until they turn 22 years of age.

Reasoning: In September 2024, the student’s parents filed a complaint under the IDEA with the New York State Education Department. The complaint said that contrary to the requirements of the IDEA, the district had not provided special education services to the student through the end of his 21st year.

The State Education Department agreed with the parent’s complaint and advised the district that it needed to provide the student with a FAPE until the end of his 21st year.

The district appealed this decision to the Albany County New York State Supreme Court.

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The State Court overturned the state’s administrative decision on procedural grounds. The State Court determined that the student did not have the right to file a complaint as he was no longer a student with a disability because he had already reached 21 years of age. Second, the State Court said that consideration of the matter would violate the separation of powers doctrine and its principles. The State Court did not reach the merits of the case.

The State of New York Education Department appealed the State Court’s decision to the “midlevel” State Appeals Court.

The State Appeals Court decided that the lower court was mistaken. It concluded that the parent had followed the proper IDEA complaint procedure. The State Appeals Court also concluded that consideration of the matter did not violate the separation of powers principles.

The State Appeals Court then considered the merits of the case. It explained that the IDEA provides that unless otherwise provided by state law or policy terminating services at an earlier age, students are required to be provided with educational services between the ages of 2 and 21, inclusive. The district argued that New York State’s law providing IDEA services to students until the school year in which the student turns 21 satisfies this “carve out”.

The State Appeals Count pointed out that in 2021, the federal Second Circuit Court of Appeals in the case of A.R. v. Connecticut State Bd. of Educ., 5 F4th 155 (2d Cir. 2021) decided that a Connecticut law with equivalent language was required to provide a FAPE to students up until the end of their 21st year. The State Appeals Court said that this was because the termination period in the IDEA said 21 “inclusive” and also because “the various adult education programs provided by Connecticut constituted a free public education within the meaning of the IDEA, thus triggering an obligation to provide a comparable FAPE to disabled students between the ages of 21 and 22 who have not yet received a high school diploma”.

The State Appeals Court explained that in 2023 the New York State Education Department issued a formal “Opinion of Counsel”. This said that the New York State statute regarding eligibility for services was “materially indistinguishable” from the Connecticut statute in the A.R. case. It also said that, like Connecticut, New York provided publicly funded adult education services (such as the GED and the National External Diploma Program) to nondisabled students in the 21-year-old age group. As such, the Opinion said that the conclusion in the Connecticut case that a district was required to provide a student with a FAPE until the end of his 21st year was equally applicable to New York. The Opinion specifically said that the A.R. decision “requires that public schools in New York provide special education and related services to resident students with disabilities until age 22, or the day before the student’s 22nd birthday”.

The State Appeals Court then said that the question was whether the State’s use “of the holding [in the A.R. case] and the analysis [in that case] as the basis for its [Opinion] and its subsequent reliance [on that Opinion] in directing schools to provide special education services through a student’s entire 21st year [was] arbitrary and capricious”. The State Appeals Court concluded that “to ensure equivalent education opportunities for students with and without disabilities, 282

[the State’s] determination that a school district should provide education services to students with disabilities until age 22 has a sound basis in reason and is supported by the record and thus, is not arbitrary and capricious”.

Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: eligibility for special education services -- classification Dispute: was the IEP substantively inappropriate because the CSE changed the classification under which the student received special education services Conclusion: The Second Circuit concluded that the District Court was correct that the IEP was not substantively inappropriate when the CSE changed the classification under which the student received special education services.

Key Take Away: Parents need to remember that a change in the classification under which the student receives special education services is a denial of a FAPE only when that causes the development of an IEP that does not adequately address the student’s needs.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

The CSE met in March 2021 and developed an IEP for the student for the 2021-2022 school year.

The CSE determined the classification under which the student would receive special education services was a traumatic brain injury. The CSE met again in August 2021. The resulting IEP was “largely equivalent” to the original March 2021 IEP. It modified the March IEP by changing the classification under which the student received special education to multiple disabilities and altered the IEP’s assistive technology recommendations. After the district notified the parents of the student’s assigned school, the parents re-enrolled the student at the private school that the student had been attending since March of 2020.

The parents submitted a due process complaint in October 2021. The complaint asserted that the district denied the student a FAPE because the district had incorrectly changed the classification under which the student received special education services from traumatic brain injury to multiple disabilities. The Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents.

The district appealed to a State Review Officer (SRO). In a 27-page decision, among other things, the SRO “explicitly considered [the parents’] procedural and substantive objections.” It concluded that the district provided the student with a FAPE. Regarding the CSE’s change in the classification under which the student would receive special education services, the SRO said that “because there was no dispute about [the student’s] eligibility for special education, the change in the student’s disability classification did not impact the goals, accommodations or special 283

education services in the student’s IEP”. The SRO concluded therefore that the change in classification under which the student would receive special education services “had no impact on [the student’s] offer of a FAPE”.

The parents filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to find in their favor. The district argued that the change in the student’s eligibility classification did not “materially impact the IEP”. The District Court agreed and ruled in favor of the district. It concluded that the district provided the student with a FAPE and that therefore the parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

The parents asked the District Court to change its mind. The district did not do so, and the parents appealed the decision of the District Court to the United States Court of Appeals for the Second Circuit. The parents argued that the district denied the student a FAPE when it changed the classification under which the student received special education services.

The Court of Appeals did not agree. The Appeals Court said that the parents’ argument was wrong “because the change in classification was immaterial to whether [the student’s] IEP provided him with a FAPE”. Regarding this, the Appeals Court referenced the parents’ agreement with the fact that a disability classification determines whether a student is eligible for special education services but that it does not determine what those services are. The Appeals Court also said that “as the SRO explained” “because there was no dispute about [the student’s] eligibility for special education, the change in his disability classification did not impact the goals, accommodations, or special education services in the student’s IEP and therefore had no impact on [the district’s] offer of a FAPE to [the student]”.

The Appeals Court agreed with the District Court that the student was not denied a FAPE when the district changed the basis upon which the student received special education services.

Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) Issue: Classification Dispute: Did the student’s reclassification as a student with “multiple disabilities” mean that the IEP was not adequately tailored to his needs.

Conclusion: The student’s reclassification as a student with multiple disabilities did not mean that the IEP was not adequately tailored to his needs.

Key Take Away: An Impartial Hearing Officer and a State Review Officer will conclude that a change in the IEP’s classification does not prevent an IEP from meeting the student’s needs if the selected classification is the “better” classification when looking at the student’s conditions “in total rather than isolation”. Further, a student’s disability classification is generally not important in determining whether a FAPE is provided if the IEP otherwise sufficiently meets the needs of the disabled student.

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Reasoning: The student has been diagnosed with cerebral palsy and a seizure disorder. He cannot speak or walk. The student needs help in all areas of mobility and activities of daily living.

In early 2018, the CSE met to discuss the student’s IEP. The CSE changed the student’s classification from traumatic brain injury to multiple disabilities. In July 2018, the student’s parents filed a due process complaint, which included the student’s change in classification.

The parents contend that the district failed to offer the student a free appropriate public education because its reclassification of the student’s disability as multiple disabilities meant that the IEP was not adequately tailored to the student’s needs. The District Court pointed out that this issue was “considered at length and reasonably rejected by both the Impartial Hearing Officer (IHO) and the State Review Officer (SRO)”. The District Court also pointed to the fact that both the IHO and SRO concluded that “multiple disabilities [was] the better classification for [the] [s]tudent when looking at his conditions in total rather than isolation”. The District Court also pointed out that “classification is generally immaterial in determining whether a FAPE [is] provided if the IEP otherwise sufficiently met the needs of the disabled student”.

The District Court concluded that the SRO’s conclusions were sensible reasoned and based on a thorough review of the record.

Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) Issue: classification, sufficiency of evaluative information Dispute: Was the parents’ claim that the student should have been found eligible for special education as a student with a traumatic brain injury as opposed to a student with multiple disabilities result in a denial of a FAPE based on the absence of sufficient evaluative information.

Conclusion: The parents’ claim that the student should have been found eligible for special education as a student with a traumatic brain injury and not as a student with multiple disabilities did not result in a denial of a FAPE based on the absence of sufficient evaluative data.

Key Take Away: The fact that there is a disagreement about the disability-based reason a student should be considered eligible for special education did not support a claim that the CSE lacked sufficient evaluative information to develop an appropriate IEP. Reasoning: The student in this case has received special education as a student with multiple disabilities. The student attended special education public school from 2006 until January 2020, at which time the parents unilaterally placed him at a private school.

The parents filed a due process complaint notice on April 29, 2020. They asserted that the district failed to provide the student with a FAPE for the entirety of his school career from 2006-2007 to

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the 2019-2020 school year. 52 Among other things, and asserting a denial of a FAPE. “[the parents] sought tuition and services reimbursement for [the student’s] attendance at [the private school] for the 2019-2020 school year as well as compensatory services…” The parents argued, among other things, that the student was denied a FAPE as the CSE determined he was eligible for special education services as a student with multiple disabilities as opposed to a student with a traumatic brain injury. This, the parents asserted “prevented [the student] from receiving the neuropsychological evaluation necessary for developing appropriate recommendations for special education services. The parents “contend this prevented [the district] from formulating a legally adequate IEP”.

Upon review, and “[a]mong other things, an IHO denied the parents’ claim and this was upheld by the SRO. “[The parents] … brought suit in the district court seeking review of the SRO’s determination. The district court deferred to the SRO’s determinations and granted [the district’s] motion for summary judgment”.

The parents appealed to the Court of Appeals. With respect to the parent’s claim, the Court of Appeals concluded “[t]he record showed that the CSE reviewed numerous assessments related to [the student’s] academic skills, cognitive skills, behavioral skills, and physical abilities to develop the IEPs for the 2018-19 and 2019-20 school years”. The Court went on to say that “[w]hile [the parents] think that a neurophysiological evaluation would have been the best starting point to determine [the student’s] functioning … [the district’s] failure to conduct the evaluation does not render the IEP legally inadequate”.

“Accordingly, [the Court] deferred to the SARO’s conclusion that the CSE considered sufficient evaluative evidence in formulating the IEPs. Polanco v. Banks, 2024 WL 2105530, No 23-373-cv (2d Cir. May 10, 2024) Issue: classification Dispute: Was it a denial of a FAPE for a student to be determined eligible for special education on the basis of multiple disabilities as opposed to on the basis of a traumatic brain injury.

Conclusion: Assuming that the IEP adequately identifies and addresses the student’s needs, it makes no difference whether the student is found eligible for special education as a student with multiple disabilities as opposed to a student with a traumatic brain injury.

Key Take Away: Assuming that an IEP identifies a student’s specific needs and addresses those needs, it makes no difference as to what particular disability category the student’s eligibility for special education in based on. Which is to say, that a parent may not challenge the district’s disability classification if the IEP identifies a student’s needs and addresses those needs.

The administrative officials and the Courts agreed that the parents’ claims prior to April 30, 2018 were timebarred.

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Reasoning: The student in this case is a minor and has been determined to be eligible for special education as a student with multiple disabilities.

The parent requested an impartial hearing on May 22, 2021. The parent’s due process complaint notice asserted a variety of claims including, apparently, that the student should have been found eligible for special education as a student with a traumatic brain injury as opposed to a student with multiple disabilities. The parent asserted that this was a denial of FAPE. Upon its review, it further appears that the IHO denied the parent’s claim. The parent appealed to a State Review Officer (SRO), who concluded in a decision on July 30, 2021 that “the IDEA’s strong preference for identifying the student’s specific needs and addressing those needs generally outweighs relying on a particular disability diagnosis”. The parent appealed to the District Court which found, consistent with the SRO’s decision, “that a student’s disability classification is generally immaterial in determining whether a FAPE was provided if the IEP otherwise sufficiently met the needs of the disabled student”. The parent appealed the District Court’s determination to the Court of Appeals.

Citing to the language of the District Court and of the SRO, the Appeals Court upheld the District Court’s opinion that it was not a denial of a FAPE for the student to be determined eligible for special education as a student with multiple disabilities as opposed to a student with a traumatic brain injury.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Did the district’s change in the student’s classification from Traumatic Brain Injury to Multiple Disabilities deny the student a FAPE. Conclusion: Upholding the SRO, the Court concluded that the district’s change in the student’s disability classification from Traumatic Brain Injury to Multiple Disabilities did not deny the student a FAPE. Basis of the Court’s Decision: In this case, the student “has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living”. “The student communicates only through vocalization, facial expressions, body movements, and eye gazing”. He is “incapable of learning on a typical academic trajectory”. At the time of the proceeding the student was sixteen or seventeen years old.

The district held a CSE meeting in March 2021. At that meeting, the CSE developed the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a particular district 75 public school, enroll in a 12-month program in a 6:1+1 special class, and receive extensive related services in occupational therapy, physical therapy, speech-language therapy, vision education services as well as full-time individual health paraprofessional services.

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In a letter dated June 23, 2021, the parents advised the district that it did not offer the student a FAPE and of their intent to unilaterally enroll the student in a private school. The parent signed a contract with the private school on July 2, 2021.

The CSE met again in August 2021. Among other things, it changed the student’s IEP classification from Traumatic Brain Injury to Multiple Disabilities.

The parents requested a due process hearing in October 2021 asserting that the district had denied the student a FAPE and of their intent to enroll the student in a private school. Among other things, the parents asserted that Traumatic Brain Injury and not Multiple Disabilities was the student’s appropriate classification based on his disabilities.

The IHO found that the district did not provide the student with a FAPE. Among other things, it found that the student’s classification should be Traumatic Brain Injury and not Multiple Disabilities and ordered the student’s IEP to be amended.

The district appealed to the New York State Review Officer (SRO). Among other things, the SRO found that the change in the student’s classification did not deny the student a FAPE. The parents appealed the SRO’s decision to federal court. In its decision, the Court cited to federal law and regulations as well as to State regulations for the proposition that the “IDEA specifies that the recommendations in a student’s IEP may not rely on the student’s disability classification; rather they must be based on the student’s unique educational needs”. Following that up and citing caselaw, the Court explained that “CSE’s are not supposed to rely on the disability category of a student in order to determine [the student’s] needs, goals, accommodations, and special educational services”.

The Court pointed to the SRO’s conclusion that the change in the student’s disability classification “did not impact the goals, accommodations, or special education services in [the student’s] IEP and, therefore, had no impact on [the district’s] offer of a FAPE to [the student].” The Court further pointed to the SRO’s decision that “generally speaking, when the student’s eligibility for special education is not in dispute, a student’s disability classification is minimally relevant to the development of [a student’s] IEP”. The Court pointed out that “[s]ince there was no dispute as to [the student’s] eligibility for special education, his classification becomes a distinction without a difference”.

With respect to the extent to which the SRO’s decision is supported by the record, the Court said that the SRO “cited the testimony of a district school psychologist who stated that the 13 disability classifications enumerated in State regulation do not affect how the student was educated”. And the Court pointed out that the SRO’s decision was also supported by “explicit” testimony of the school psychologist that the student’s “disability classification did not change anything in terms of the discussion that the March CSE had or the recommendations that it made”.

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The Court found “the SRO’s decision to be both sufficiently reasoned and supported by the record” and “adopt[ed] it”.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the IEP’s change in the student’s classification denied the student a FAPE. Conclusion: The Court held that the argument regarding the student’s classification was a “red herring” and that the student’s classification did not deny the student a FAPE. Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The IEP developed for the student for the 2018-19 school year changed the student’s disability classification to a student with multiple disabilities from a student with a traumatic brain injury.

The parent asserted that this was improper and cited to testimony from the student’s private school’s Director of Special Education that “the student’s seizure disorder was what drove his educational needs”. The IHO disagreed and found that relevant State regulation provided that multiple disabilities was “a better classification for [the student] because it considere[d] all of his impairments”.

The Court characterized the dispute regarding the student’s classification as “a red herring” and, citing to relevant caselaw, explained that “disability classification is used for one and only one purpose: to ascertain whether a child falls into one of the 13 categories that render him/her eligible for special education services”. The Court continued and cited to additional caselaw for the statement that “it is not the classification per se that drives IDEA decision-making; rather, it is whether the placement and services provide the child with a FAPE”.

The Court agreed with the district’s rationale “that multiple disabilities was a better classification for [the student] than traumatic brain injury”. The Court also referenced the SRO’s finding that “the IEP was correctly tailored to [the student’s] needs regardless of classification” as the SRO explained that “the IEP contain[ed] a wealth of information regarding the student’s needs and sufficiently identified the areas of concern related to classification raised in the [private school director’s] testimony” The Court found “both administrative hearing officers’ reasoning to be well-supported by the record, and moreover, [found] the issue [of ‘classification’] irrelevant to determining whether [the student] was provided a FAPE”. The Court concluded that the student’s disability classification of multiple disabilities “did not substantively deprive [the student] of a FAPE”.

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B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) Dispute: Whether the student’s disability classification should be changed from a student with another health impairment to a student with autism.

Conclusion: The Court held that in the circumstances of the case, the particular disability classification was a distinction without a difference.

Basis of the Court’s Decision: The student in this case has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyper-Activity Disorder, reading and writing impairments, and chronic kidney disease. The student is eligible for special education programs and services as a student with a disability and in particular a student with another health impairment.

The Court initially held that because the issue had not been brought before it, questions regarding whether the student should be classified as a student with autism or as a student with another health impairment were waived.

In any event, the Court went on to say that the student qualified as a student with a disability both as a student with another health impairment and as a student with autism. The Court said that therefore the student “was entitled to IDEA eligibility and the [d]istrict was required to formulate an IEP for him”. The Court said that following this, “[t]he IEP necessarily, and as its name suggests, took into account the individualized needs of [the student]” and “[t]he IEP would not change based on the specific disability classification and [the student], therefore, would receive the same education regardless”. Under such circumstances, the Court said, that “the classification becomes a distinction without a difference”. See Carrillo v. Carranza, No. 20-CV04639, 2021 WL 4137663, at *15 (S.D.N.Y. Sept. 10, 2021).

Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) Dispute: Whether the CSE should have classified the student as one with multiple disabilities instead of as a student with a traumatic brain injury.

Conclusion: The Court of Appeals found that there was no dispute that the student was eligible for special education services and that therefore the question before it was whether the special education programs and services offered by the district provided the student a FAPE. Basis of the Second Circuit’s Decision: The student “is a nonverbal and non-ambulatory student with significant disabilities”. As part of the development of the student’s IEP, the CSE “classified the student’s disability as multiple

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disabilities, assigned special education programs and services, and recommended that [the student] be placed in a 12:1:4 classroom 53”.

The parents asserted that the CSE’s classification determination violated the student’s right to a FAPE, “provided notice of their intent to unilaterally place [the student] in a private [school …] and filed a due process complaint [notice] seeking reimbursement of tuition and other costs related to the student’s attendance at the private [school]”. Among other things, the parents asserted that the CSE should have classified the student as one with a traumatic brain injury instead of a student with multiple disabilities.

After a hearing, the IHO issued a “thorough” decision finding that the CSE’s proposal provided the student with a FAPE. The parents appealed that decision to the State Review Officer (SRO), who “issued a detailed thirty-four-page decision finding that the IHO had correctly determined that the student was offered a FAPE”. The parents filed an action in District Court challenging the SRO’s decision.

The parents reasserted before the District Court that the CSE should not have classified the student as a student with multiple disabilities, as opposed to a student with a traumatic brain injury, as that would lead to “inappropriate recommendations for special education programs and services”. The District Court found this to be “a red herring” and the Second Circuit agreed.

The Second Circuit cited to the District Court’s decision for the proposition that “[d]isability classification is used for one and only one purpose: to ascertain whether a child falls into one of the 13 categories that render [a student] eligible for special education services”. The Second Circuit said that in this case that there was “no dispute that [the student] [was] eligible for special education services, so the question before [the Circuit Court] was whether the special education program and services offered to [the student] denied [the student] a FAPE”.

Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) Dispute: Should the student be classified as a student with a disability.

Conclusion: Reversing the CSE and the determination of the IHO, the SRO determined that the student was properly classified as a student with an Other Health-Impairment.

Basis of the SRO’s Decision: The student was in Grade 2 at the time of the CSE meeting relevant to this case. Private evaluation yielded diagnoses of oppositional defiant disorder (ODD), anxiety disorder, and attention deficit hyperactivity disorder (ADHD). A November 2020 neuropsychological evaluation noted in relevant part that “concerns were expressed about some challenging behaviors displayed both at home and in school,” that the student “displayed reduced verbal and 53

That is, a classroom placement of 12 students, I licensed special education teacher, and three paraprofessionals.

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physical self-control”, can be “very impulsive”, “could be oppositional and negative”, demonstrated a “high energy level”, that his “sustained attention was variable”, that he “was avoidant and resistant to engaging in some activities”, that the student’s “behavioral profile was also significant for a high level of oppositional and defiant behaviors”, and that the student “exhibited disruptive, non-compliant, and aggressive behavior in the classroom”. Additionally, the student demonstrated significant anxiety both at school and at home. During testing, an evaluator described the student as presenting “with a high level of behavioral disinhibition, was very impulsive, in near constant motion throughout testing, demonstrated challenges with sustained attention, concentration, and focus, and performed below age expectation on formal measures of sustained attention”. An update to this evaluation advised that “much effort was made to develop effective behavior plans for the student’s first grade classroom” but that they were “unsuccessful”. A letter from the student’s psychologist, indicated that the student had “disruptive, non-compliant, and aggressive” behavior in the classroom. The letter reported that “the combination of the student’s difficulties made it highly challenging for [the student] to get through the school day”. She also reported “that the student continued to struggle with his academic, behavioral, and social/emotional functioning”. “[B]ehavioral scales completed by the student’s parents and teachers resulted in elevated scores for hyperactivity, externalizing behavior, defiance, and aggression”. Private evaluations recommended that the student receive counseling, OT to support the student’s handwriting development, and a behavioral intervention plan.

The student had a full-scale IQ of 128 (97th percentile). The student had relative weaknesses in processing speed and working memory, and both fell in the high average range. On a measure of academic achievement, the student scored between the 55 and 95th percentiles on tasks involving word reading, reading comprehension, and oral reading fluency and in the average range in written expression, mathematics, and math fluency.

The April 13, 2022, CSE concluded “that the student presented with high average to superior cognitive abilities and academic abilities according to assessments, and that staff from the student’s non-public school reported that he performed at or above grade level in reading, writing and math…” The CSE concluded that “the student was able to access the general education curriculum” and “found that the student was not eligible for special education services and programs”. Upon the parents’ appeal, the impartial hearing officer (IHO) agreed with the CSE. The IHO concluded that “because, although the student was diagnosed with ADHD, ODD and anxiety, the student’s behaviors in the classroom did not negatively affect the student’s ability to achieve grade-level performance”.

As indicated below, the SRO disagreed and found that the student was a student with a disability as a student with another health-impairment. “[T]he IDEA defines a child with a disability as a child with specific physical, mental, or emotional conditions, including a learning disability, who by reason thereof needs special education and related services.” See 34 CFR 300.308[a][1]; 8 NYCRR 200.1[zz]. Applicable federal and State 292

regulations set forth a number of “disability categories”, including “other health-impairment”.

See 34 CFR 300.8[c][1 – 13]; 8 NYCRR 200.1[zz][1-13].

“Under State and federal regulation, other health-impairment is defined as ‘having limited strength vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that…is due to chronic or acute health problems such as … attention deficit hyperactivity disorder’[ADHD] that adversely affects a child’s educational performance’”. 34 CFR 300.8[c][9]; 8 NYCRR [zz][10].

In determining whether the student fell within any of the disability categories, regarding the category other health-impairment, the SRO felt it relevant that the student had “received several diagnoses including a diagnosis of ADHD”. Upon a full review, the SRO concluded “that the evidence indicated that the student has a health condition that would fall within [] those identified in the other health-impairment category”. He pointed out that “the student’s child psychologist, as well as the neuropsychologist who evaluated the student, agreed that the student met the criteria for ADHD and the district provided no evidence or argument to the contrary”. “Moreover”, the SRO said that “oral reports by the student’s parents and teachers at the CSE meeting indicated that the student required prompts to stay focused and refrain from calling out, reminders to calm down or stop when being silly, and redirection to follow class rules and procedures.”

With respect to the requirement that the disability category “adversely affects a child’s educational performance”, the SRO pointed out that the “student is extremely bright”. He referenced the parents’ neuropsychological report which “stated that the student’s performance on standardized academic measures revealed that his true academic skills were at much higher levels than the teacher observed on a day-to-day basis in the classroom setting, which indicated that other factors were serving as barriers to the student demonstrating his true and very welldeveloped academic abilities in school”. The SRO pointed out that upon his review of the entirety of the evidence in the case, “the student tended to need behavioral intervention to appropriately attend to his classroom routines”. Further, the SRO pointed out that “the student demonstrated need for sustaining attention to school work, and completing school work and he required a level of support in the classroom in order to achieve this”. The SRO concluded that “[o]verall, the evidence above ever so slightly favors the view that the student’s ADHD and behavior concerns adversely affects this very intelligent student’s classroom performance”.

As indicated above, “in order to be deemed eligible for special education, a student must, by reason of such disability, need special educational and related services.” See 34 CFR 300.308(a)(1); 8 NYCRR 200.1(zz). Regarding this, the SRO pointed out, among other things, that the November 2020, private neuropsychological evaluation recommended supportive services and also classroom recommendations, that the updated neuropsychological report recommended individual and group counseling, OT, and recommendations for behavioral interventions including a behavioral intervention plan.

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Based on the presence of one of the requited disability categories, that the student’s condition “adversely affects a child’s educational performance”, “and who by reason thereof, needs special education and related services”, the SRO concluded that “the evidence supports the parent[s]’ view [on appeal] that the student should have been found eligible for special education as a student with another health-impairment”.

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the district properly found the student ineligible for special education as a student with an emotional disturbance.

Conclusion: The Court upheld the SRO and determined that the student was not eligible for special education services as a student with an emotional disturbance.

Basis of the Court’s Decision: A child is eligible for special education on the basis of an emotional disturbance if the child is evaluated in accordance with the IDEA as having an emotional disturbance and who, because of the emotional disturbance, needs special education and related services. See 34 CFR 300.8(a)(1).

Further, in order for an evaluation of a child to conclude that the child has an emotional disturbance the child must meet one of five definitional characteristics and that definitional characteristic has to, inter alia, adversely affect a child’s educational performance. See 34 CFR 300.8(c)(4)(i). The five definitional categories are (1) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (2) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (3) inappropriate types of behavior or feelings under normal circumstances; (4) a general pervasive mood of unhappiness or depression; or (5) a tendency to develop physical symptoms or fears associated with personal or school problems. See 34 CFR 300.8(c)(4)(i).

The SRO considered each of the five definitional categories related to emotional disturbance and concluded that the student only qualified for the fifth category – whether the student had a tendency to develop physical symptoms or fears associated with personal or school problems.

With respect to the first characteristic, the SRO concluded that the student did not have an inability to learn that cannot be explained by intellectual, sensory, or health factors. The Court agreed, concluding “that neither [the student’s] anxiety nor any of her other conditions impeded her ability to learn to the degree necessary” to meet this criterion and that the record reflected that the student “participated actively in her classes” and “achieved adequately” in them.

Regarding the second characteristic, the SRO concluded that the student did not have an inability to build or maintain satisfactory interpersonal relationships with peers and teachers. With respect to this, the SRO found that the student “was outgoing, made friends easily (albeit few close friends) and had appropriate relationships with adults and peers”. The Court found that the

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record supported a finding that the student did not exhibit an inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

Regarding the third characteristic, the SRO concluded “that while the student experienced anxiety in response to stressful situations, the student’s behavior under the circumstances in which she found herself were not so unusual to satisfy the third characteristic”. As to this, the SRO concluded that as part of one evaluation, the evaluator determined that the student “had an elevated level of internalizing behavior” and that in one instance the student “showed poor judgment under peer pressure” and that this was insufficient to find that the student met this criterion. The Court agreed and concluded that “neither a single rating on an evaluation that examined numerous emotional skillsets nor an isolated behavioral incident by a middle school student” was sufficient to establish that the student exhibited “inappropriate types of behavior or feelings under normal circumstances”.

Regarding the fourth characteristic, the SRO determined that the evidence regarding the student’s mood was “scattered.” The Court agreed that “while [the student] experienced anxiety and depression, [the student’s] teacher reviews and the weight of the record indicated that she did not exhibit a general pervasive mood of unhappiness or depression.” (emphasis supplied).

Regarding the fifth characteristic, the SRO disagreed with the IHO. The SRO found that because inter alia the student became physically ill at the thought of going to school she met the fifth characteristic of emotional disturbance. However, the SRO did not find that the student was a child with a disability because the student’s condition did not “adversely affect her performance.”

See 34 CFR 300.8(c)(4). The Court concluded that the SRO “appropriately assessed [the student’s] academic performance and determined that it was not adversely affected”, pointing to the fact that the student “excelled in numerous subjects and maintained an overall grade average in the high eighties in sixth and seventh grades, performed at or above average on standardized tests, and received positive reviews from her teachers”. The Court found that the student “performed well in school – even taking into account the lower grades she received in certain classes – and despite her physical symptoms of anxiety was a good student and a positive influence at her school”. The Court found that the record supported the SRO’s determination that the student did not experience an adverse effect on her educational performance sufficient to classify her as emotionally disturbed under the IDEA. With all of the above in mind, the Court upheld the SRO’s determination that the student was not a child with a disability under the IDEA. Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) Dispute: The parent’s challenge the CSE’s decision to classify the student as one with “multiple disabilities” rather than with a “traumatic brain injury”.

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Conclusion: The Court upheld the SRO’s finding that the student suffered from multiple disabilities but also found that the substantive requirements of the IEP depend on the student’s needs and not the student’s classification.

Basis of the Court’s Decision: The Court found that the parents’ dispute with the CSE relative to the student’s disability classification was “a red herring”. The Court pointed out that disability classifications are only relevant to determining whether a student is eligible for special education services. Citing to another Court, “[i]t is not the classification per se that drives IDEA decisionmaking; rather it is whether the placement and services provide [the student] with a FAPE.” The Court agreed with the IHO that the IDEA provides that a student’s “special education programming, services and placement must be based on a student’s unique special education needs and not upon the student’s disability classification”.

With respect to this student, the Court found that the student “plainly suffers from multiple disabilities.” With respect to whether the student suffered from a traumatic brain injury, the court said that this was “unproven” on the record before the court which had no medical testimony at all and was “beside the point”. The Court went on to say that “[n]o one disputes that the [student] qualifies for special education services under IDEA”. Therefore, the Court said that “for our purposes the precise disability category in which [the student] is classified is irrelevant”. The Court agreed with the SRO that “[t]he significance of the disability category is more relevant to the LEA and State reporting requirements than it is to determine an appropriate IEP for the individual student”. Relating to the latter the court said that “it was necessary to determine the student’s educational and management needs at a granular level, not with reference to her disability classification”. The Court agreed with the SRO that “[o]nce a student has been found eligible for special education, the present levels of performance sections of the IEP for each student is where the focus should be placed, not the label that is used when a student meets the criteria for one or more disability categories”.

Application of the Bd. of Educ., Appeal No. 20-112 (Sept. 1, 2020) Dispute: Whether the CSE properly determined the student’s eligibility for special education services.

Conclusion: The SRO upheld the IHOs determination that the student was eligible for special education services.

Basis of the SRO’s Decision: The SRO concluded that the IHO’s determination that the student was eligible for services as a student with a disability was “thorough and well-reasoned”. In this case, it was the conclusion of both the parents’ psychologist and the district’s psychiatrist that the student should be classified as a student with a disability and in particular, as a student with an emotional disturbance. Regarding this, the SRO cited to the IHO’s conclusion that while the district disagreed with the parents’ and district’s evaluations it did not disagree with the methodology of testing, the testing, or the results of the testing. Additionally, the SRO wrote that “significantly” not only did the district disagree with the recommendation as to what services 296

to provide but also the “threshold issue” of classification and pointed to the IHO’s conclusion that “[w]ith two medical professionals offering multiple reasons for classification as emotionally disturbed, any CSE would be remiss to depart from them without a clear and substantial reason to do so”. Additionally, the SRO concluded that the IHO rightly focused on a “disconnect” between teacher responses on a district psychoeducational evaluation and teacher interviews by the school psychologist and that this, and the student’s poor performance in math and science “should have given pause to the CSE” when determining criteria relative to the student’s eligibility as a student with an emotional disturbance. Further, the SRO pointed to the fact that the student failed his ninth-grade math and science regents’ examinations and science class. The SRO agreed with the IHO that the fact that the student went to summer school and addressed those deficits was not determinative. In the first place, the SRO pointed out that while not every student attending summer school is a student with a disability, such should not be looked at “in isolation” but as “one part of the student’s profile”. Second, the SRO also pointed to the IHO’s recognition that the private psychologist and district’s psychiatric assessment both recommended some type of special education services and that the passing of the student’s regents’ exams and science class in summer school could not “in and of itself” be considered a “success”. This, since this “reteaching” “is a form of intervention that cannot be ignored when there are multiple reports and test (sic) that suggest that this student is struggling because of issues identified in multiple medical reports”. The SRO also pointed to the IHO’s conclusion that the “medical reports coupled with the weight of the evidence” showed that the district erred in concluding that the student “did not satisfy the criteria” of a student with an emotional disturbance and that “contrary to the district’s allegation on appeal”, the IHO did not overlook or fail to make findings regarding the impact of the student’s emotional struggles on his educational performance. With all of this in mind, the SRO approvingly referenced the IHO’s finding that the “district’s failure to classify the student with an emotional disturbance or learning disability which rendered the student ineligible for special education services ‘resulted in a substantive denial of FAPE’”.

LEARNING DISABILITIES Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Did the CSE err when it did not classify the student as learning disabled.

Conclusion: The CSE erred when it did not classify the student as learning disabled.

Basis of the SRO’s Decision: A child with a disability includes a child with a specific learning disability who by reason thereof needs special education and related services. See 34 CFR 300.8(a)(1). According to State and federal regulations, a learning disability means “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do 297

mathematical calculations”. “A learning disability includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia”. “A learning disability does not include learning problems that are primarily the result of visual, hearing or motor disabilities; of an intellectual disability; of emotional disturbance; or of environmental, cultural or economic disadvantage”. “While many of the eligibility classifications require a determination that a student’s condition adversely affects the student’s educational performance …, the learning disability classification does not contain a requirement expressed in such terms”. “Instead, consideration of whether a student has a specific learning disability must take into account whether the student achieves adequately for the student’s age or meets Stateapproved grade-level standards when provided with learning experiences and instruction appropriate for the student’s age, and either the student (1) does not make sufficient progress or meet age or State approved grade-level standards when provided with [a response to intervention] RtI process, or (2) assessments identify a pattern of strengths and weaknesses determined by the CSE to be indicative of a learning disability” While in some cases, the CSE may consider whether the student “exhibits a severe discrepancy between achievement and intellectual ability in certain areas including reading fluency skills; however the severe discrepancy criteria cannot be used by districts to determine if a student in kindergarten through the fourth grade has a learning disability in the subject of reading.”

“In addition to drawing on a variety of sources including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior, federal and State regulations prescribe additional procedures that a CSE must follow when conducting an initial evaluation of a student suspected of having a learning disability”. “As the student’s achievement when provided with appropriate instruction is central to determining whether a student has a learning disability, State and federal regulations require that the evaluation of a student suspected of having a learning disability include information from an observation of the student in routine classroom instruction and monitoring of the student’s performance, and further require that the CSE include the student’s regular education teacher”.

“With respect to the relationship between RtI and the learning disability category of eligibility, State guidance describes that RtI is a practice of providing high-quality instruction or intervention matched to student needs and using learning rate over time and level of performance to make important educational decisions about an individual student. The guidance describes RtI as an important educational strategy that has been shown to lead to more appropriate identification of and interventions with students with learning disabilities. The guidance provides that identifying whether a student has a learning disability must be based on extensive and accurate information that leads to the determination that the student’s learning difficulties are not the result of the instructional program or approach.”

“When determining whether a student should be classified as a student with a learning disability, a CSE must also create a written report documenting information, including, among other things, 298

whether the student has participated in an RtI program.” “[A] student may be found to have a learning disability if the student has not made sufficient progress to meet age or State-approved grade level standards in certain areas when provided with appropriate instruction consistent with an RtI model. To determine whether a student is responding to RtI, the district’s process must include repeated assessments of student achievement which should include curriculum-based measures to determine if interventions are resulting in student progress toward age or grade level standards. The purpose of such progress monitoring is to assess students on a repeated basis to provide data of a student’s growth over time to determine if the student is progressing as expected in the curriculum. This data should be utilized in a district’s RtI process to inform student movement through tiers. State guidance has set out specific steps to ensure accurate progress monitoring; guidance identifies that the district should establish a benchmark for performance and plot it, establish the student’s current level of performance, monitor the student’s progress frequently, and analyze the data and determine trends that arise from such data. State guidance further identifies that progress monitoring should occur no less than once every two weeks in Tier 2 and no less than every week in Tier 3”.

In this case, during the 2017-18 (first grade), 2018-19 (second grade) and 2019-20 (third grade) school years the student received support in reading as part of the district’s multi-tiered RtI program. “On December 10, 2019, a privately obtained psychoeducational evaluation of the student was conducted by a private psychologist”. Among other things, the psychoeducational evaluation “offered a diagnosis of specific learning disability in reading (decoding)”. Relative to this, and among other things, the district did not conduct its own psychological examination. On September 3, 2020, when the student was in the fourth grade, the parents provided the private evaluation to the assistant director of special education and requested a CSE meeting. “By notice dated October 23, 2020. The parents were invited to a CSE meeting…on November 6, 2020”. The CSE convened on that date and its membership included the assistant director of special education, the school psychologist, a special education teacher, and the student’s remote regular education teacher. The information before the CSE included the December 2019 private psychoeducational report, a June 2020 report card, an October 2020 reading evaluation, an October 2000 record review, and an October 2020 classroom observation. By prior written notice on the same day and after the CSE meeting, the district summarized the CSE’s recommendation that the student was not eligible for special education services.

By amended due process complaint notice dated April 14, 2022, among other things, the parents alleged that “the CSE improperly failed to find the student eligible for special education as a student with a learning disability … from 2019 onward”.

“By decision dated January 10, 2023” the IHO found, among other things, that the November CSE did not follow the guidelines for determining whether the student was a student with a disability and specifically a student with a specific learning disability and failed to evaluate the student in all areas of suspected disability. Among other things, the IHO remanded the matter to “the CSE

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for evaluations in all areas of suspected disability and to consider the student for eligibility for special education services”.

Both parties appealed the IHO’s decision to the OSR. The parents contended, among other things, that the November 2020 CSE should have found that the student was a student with a disability, and in particular with a learning disability, and as related to that, that the district did not follow the RtI process in relevant part, and that further the IHO erred by remanding the matter to the CSE for a determination as to the student’s eligibility for special education programs and services. The district argued in relevant part “that the IHO properly did not determine that the student should have been found eligible for special education as a student with a learning disability in that the evidence did not support the student’s need for special education”.

Regarding whether the fourth-grade student met the classification as a student with a specific learning disability (see 34 CFR 300.8(a)(1)) in November 2020, the SRO concluded that the hearing record showed that the district did not conduct a complete initial evaluation of the student but also found that the “evaluative material” available to the November 2020 CSE was sufficient to determine the student “met the criteria for eligibility as a student with a learning disability”.

In a detailed review of the evidence available to the CSE at the November 2020 CSE meeting, the SRO pointed out that the student’s cognitive potential yielded overall scores in the average range but various reading scores consistently in the below average range. Further, the SRO also pointed out that testing by the private evaluator showed that “despite some solid compensatory skills, the student demonstrated pervasive and significant deficits in the underlying reading processes necessary for continued development in reading” and “lacked automaticity even at some of the most basic levels”. The SRO also pointed out that the student’s private evaluator reported “that the student’s lack of phonemic proficiency impaired the development of decoding and orthographic mapping skills, and although the student recognized some words on sight, she did not do so efficiently (lacked fluency) or consistently”. As such, the SRO said that the private psychologist “indicated that the student was prone to frequent word substitution errors and, further, when presented with unknown words to decode (nonsense words), the student was inconsistent in her application of decoding strategies which earned her scores below the average range despite years of academic intervention support and systematic Tier 1 phonics instruction at school”. The SRO also pointed out that ”[t]he private psychologist reported that although the student received evidence-based Tier 1 instruction and Tier 2 academic support, her profile suggested that she required intensive, explicit, systematic, and phonologically-based reading instruction that was of sufficient intensity and individualized to her needs…”

The SRO also pointed out, as indicated above, that the private psychologist “noted that the student met the diagnostic criteria for dyslexia (language-based reading disability) and that she met the IDEA classification criteria as a student with a specific learning disability in reading (decoding).” As a part of the report, the SRO indicated that the evaluator recommended that the student receive an IEP with related supports, services, and accommodations at school and 300

including as well, comprehensive reading intervention by a skilled and appropriately trained reading teacher.

The SRO concluded here that the hearing record showed that the district “failed to offer sufficient evidence of the student’s RtI performance data consistent with State regulation and further failed to establish that referral of the student was not required during the 2019-20 school year. The SRO again referenced the student’s psychological evaluation and that it “noted that the student met the criteria for a specific learning disability in reading (decoding). The SRO said that while the CSE was not required to agree with this conclusion it “was still required to present the data gathered as part of its RtI progress and use that data in determining whether the student was making sufficient progress towards grade level standards”. With that in mind, the SRO found that the “district has failed to meet this burden” With regard to whether the student required special education and related services because of the disability (see 34 CFR 300.8(a)(1)), the SRO pointed out that “State law and regulation in New York specifically contemplate the provision of RtI support or additional general education support services to students in the general education setting.”

The SRO concluded that “[g]iven the broad definition of special education within New York’s Education Law and State regulations and given the length of time the student had consistently received interventions under RtI, her minimal progress within RtI, and her regression when RtI services were decreased, the evidence in the hearing record supports the conclusion that the student required special education to make sufficient progress in reading to access the general education curriculum”. The SRO pointed out here that “the student demonstrated weaknesses in reading, specifically with decoding, fluency, and comprehension and she began receiving RtI services, including small group instruction in reading separate from core instruction, in first grade that has continued each year since”.

The SRO continued that “the continuous provision of RtI services to the student beginning with the 2017-18 school year and the district’s inability to demonstrate through consistent progress monitoring that the student made progress toward grade level standards … supports a finding that the student required special education and the district denied the student a FAPE as a result of the November 2020’s CSE’s failure to find the student eligible for special education for the 2020-21 school year continuing through the 2021-22 school year as the parents alleged”.

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the district properly found the student ineligible for special education as a student with a specific learning disability.

Conclusion: The Court upheld the SRO and determined that the student was not eligible for special education services as a student with a specific learning disability.

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Basis of the Court’s Decision: A student may be eligible for special education services upon an evaluation that finds the student has a specific learning disability such that the student needs special education and related services. 34 CFR 300.8(a)(1). A “specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. 34 CFFR 300.8(c)(10). Further, for purposes of the IDEA, identifying a student with a specific learning disability requires a determination that “(1) the child does not achieve adequately for the child’s age or to meet Stateapproved grade-level standards… [and] (2)(i) the child does not make sufficient progress to meet age or grade level standards … or (ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement , or both, relative to age, State-approved grade level standards or intellectual development. See 34 CFR 309(a)(1), (2).

In this case, the issue is whether or not the student has a specific learning disability by virtue of her deficiencies in math and as to her auditory processing disorder.54 The SRO determined that the student did not have a specific learning disability in math because the student did not need special education as a result of the student’s specific learning disability.

See 34 CFR 300.8(a)(1). The Court saw the relevant question as whether or not the student achieved adequately and did not make sufficient progress or exhibited a pattern of strengths and weaknesses in performance. See 34 CFR 309(a)(1),(2). The Court upheld the SRO’s determination that the student was not eligible for special education services as a student with a specific learning disability on the basis that, in relevant part, the student achieved “adequately” and “made progress” in math.

The SRO also found that the student’s auditory processing disorder did not rise to the level of a student with a disability because it did not impact the student’s performance to the degree that she required special education. The Court said that the SRO’s determination as to the student’s auditory processing “again” depended on the condition’s effect on her educational performance.

The Court “agreed” that any effect the student’s auditory processing had on her academic achievement “was, at most, marginal” and “that any issues with auditory processing did not affect her academic achievement”. The Court agreed with the SRO that the student was not a student with a disability as to her auditory processing disorder due to a specific learning disability.

As indicated below, it appears that the Court conflated the requirements set forth at 34 CFR 300.8(a)(1) and 34 CFR 300.309.

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TWICE EXCEPTIONAL/GIFTED STUDENTS C.K. and K.K. v. Baldwin Union Free Sch. Dist., Civil Action No. 22-2265 (GRB)(SIL), 2023 WL 6158699 (E.D.N.Y. Sept. 21, 2023) Dispute: Whether this gifted/twice exceptional student received a FAPE in the LRE. Conclusion: The Court affirmed the SRO’s determination that the district provided this gifted/twice exceptional student with a FAPE. Basis of the SRO’s Decision: The student in this case is classified as a student with emotional disturbance. He has been diagnosed with attention deficit hyper-activity disorder (ADHD), oppositional defiant disorder (ODD), major depressive disorder (MDD), and social anxiety disorder (SAD). During the relevant school years (1919-20 and 2020-21), the student was in the eighth and ninth grades.

The CSE met in June 2019 for the development of the student’s IEP for the 2019-20 school year when he would be in the eighth grade. At that meeting, a private neuropsychologist described the student as an “intellectually gifted youngster who has difficulty adjusting to established rules”. The neuropsychologist recommended that the student be placed in “a private academic setting designed to address the needs of emotionally fragile and dysregulated youth”. The neuropsychologist “also indicated that the student reported feeling under stimulated which conspires with his mood/anxiety and ADHD symptoms and causes him to give up on school and creates an obstacle to fulfilling peer relationships.” At the CSE meeting, “the student’s seventh grade social studies teacher testified that the student interacted well with his peers and had recently received a grade of 100 on a group project”. The teacher did note that the student “was having trouble completing homework for the class”. The student’s seventh grade ELA teacher “testified that the student was doing very well, had friends in his class, was always respectful, would engage in class discussion, and do his work”. She also indicated “the student’s failure to complete his homework for the class. The student’s participation in the chess club and robotics club during the prior school year was also noted”.

At the June 2019 CSE meeting, the CSE “created an IEP with specific guidelines and goals” as well as recommending counseling and a number of supplemental aids, services, and program modifications.

The student attended a district middle school during the 2019-20 school year and “was enrolled in honors classes for social studies, mathematics, and science”. His grades for the first marking period included ELA, 70; social studies, 81; mathematics, 96; science, 96; Italian 1, 92; health, 55; and Phys Ed, 80. The CSE met again in October 2019. The testimony indicated that while the student “was thriving in science, mathematics and Italian 2, the student was struggling to participate and complete required work in ELA and health”. The CSE modified the student’s IEP to include, among other things, “encouraging the student to seek extra help in areas he found

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challenging”. The student’s final eighth grade (20I9-20) averages were ELA, 77; social studies, 84; mathematics, 98; science, 97; Italian, 89; health ,73 and Phys Ed. 83.

The CSE met to develop the student’s IEP for his 2020-21 school year in June 2020, when he would be in the ninth grade. “The CSE focused largely on the student’s social-emotional progress and considered reports from [the student’s] parents, teachers, a private psychologist and a District social worker. The psychologist noted that the student was struggling with major depressive disorder and that he had an emotional reaction to school but that he was responding to the implementation of coping skills at home”. The District social worker spoke to the student’s “immense academic and emotional growth since the sixth grade”. The social worker also “described the student’s successful integration into the large public-school setting and his active participation in counseling. The social worker stated that although [the student] has minimal social interaction and he prefers to be alone, he has the ability and support system in place to develop stronger peer connections”.

The CSE recommended that the student attend the District high school for the 2020-21 school year “where he was accepted into the engineering program”. The CSE created an IEP which recommended counseling, annual goals and program modifications for the student’s areas of weakness. “At the conclusion of the meeting, the parents again indicated that they believed that the district high school was not the right placement for [the student] and that a placement at [a specific private school] would be best for his social-emotional health”. The CSE disagreed with the parents as the private school was “not an approved setting and that the district was able to offer the student a FAPE”.

Upon review, the Court concluded that the district provided the student with a FAPE during the relevant school years and “was substantively adequate”. The Court pointed out that “[t]he SRO reviewed the student’s report cards and progress reports, as well as testimony” from relevant District staff, and private psychologists and psychiatrists. The Court said that “[d]uring the 201920 school year, [the student] received adequate grades to advance to the District high school the following year”; and that he “was accepted into the high school’s engineering program with the opportunity to take honors and advanced placement classes”. “In terms of his functional progress” the Court said that “the SRO reviewed testimony from [the student’s] teachers, who discussed his improved in-class behavior and successful interaction with peers”. The Court also said that “the SRO considered the testimony of the District social worker who was impressed with [the student’s] major social-emotional improvement since the sixth grade, his active participation in counseling, and his potential to foster relationships with peers”. The Court pointed out that the student “also successfully achieved both social-emotional goals set forth in the 2019-20 IEP”.

The Court further advised that the SRO had “also considered that [the student’s] intellectual giftedness in certain subjects [could] lead to frustration and other emotional turmoil for the child”. The Court concluded here that while “this might suggest [the student] was not progressing in light of his full potential, the District was not required to maximize this potential under Rowley”. See Bd. of Educ. v. Rowley, 458 U.S. 176, 189-90 (1982).

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The Court concluded that the student’s program had also “satisfied the LRE requirement”.

Regarding the 2019-20 school year, the Court pointed to the fact that during this school year, the student received group counseling and parent counseling, program modifications and supplemental aids and servicers. The Court further pointed out that “with these aids and services, [the student received] passing marks in all his classes and achieved both socialemotional goals outlined by the IEP”. Regarding the 2020-21 school year, the Court pointed to the fact that the IEP “included a continuation of counseling services, a Chromebook for writing, and relaxed homework modifications”. While the student did not attend the District high school during that school year, the Court said that “the SRO considered this IEP adequate in light of [the students] demonstrated academic and social abilities during the 2019-20 school year”.

The Court concluded that the IHO’s decision, which had found that the District did not offer the student a FAPE, should be reversed as the SRO “reviewed the appropriate legal standards” and issued a “well-reasoned decision”. The Court also concluded that “the evidence and the hearing record before the Court demonstrate[d] that the District offered [the student] a free appropriate public education in the least restrictive environment for the 2019-20 and 2020-21 school years”.

Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) Dispute: Should the student be classified as a student with a disability.

Conclusion: Reversing the CSE and the determination of the IHO, the SRO determined that the student was properly classified as a student with an Other Health-Impairment.

Basis of the SRO’s Decision: The student was in Grade 2 at the time of the CSE meeting relevant to this case. Private evaluation yielded diagnoses of oppositional defiant disorder (ODD), anxiety disorder, and attention deficit hyperactivity disorder (ADHD). A November 2020 neuropsychological evaluation noted in relevant part that “concerns were expressed about some challenging behaviors displayed both at home and in school,” that the student “displayed reduced verbal and physical self-control”, can be “very impulsive”, “could be oppositional and negative”, demonstrated a “high energy level”, that his “sustained attention was variable”, that he “was avoidant and resistant to engaging in some activities”, that the student’s “behavioral profile was also significant for a high level of oppositional and defiant behaviors”, and that the student “exhibited disruptive, non-compliant, and aggressive behavior in the classroom”. Additionally, the student demonstrated significant anxiety both at school and at home. During testing, an evaluator described the student as presenting “with a high level of behavioral disinhibition, was very impulsive, in near constant motion throughout testing, demonstrated challenges with 305

sustained attention, concentration, and focus, and performed below age expectation on formal measures of sustained attention”. An update to this evaluation advised that “much effort was made to develop effective behavior plans for the student’s first grade classroom” but that they were “unsuccessful”. A letter from the student’s psychologist, indicated that the student had “disruptive, non-compliant, and aggressive” behavior in the classroom. The letter reported that “the combination of the student’s difficulties made it highly challenging for [the student] to get through the school day”. She also reported “that the student continued to struggle with his academic, behavioral, and social/emotional functioning”. “[B]ehavioral scales completed by the student’s parents and teachers resulted in elevated scores for hyperactivity, externalizing behavior, defiance, and aggression”. Private evaluations recommended that the student receive counseling, OT to support the student’s handwriting development, and a behavioral intervention plan.

The student had a full-scale IQ of 128 (97th percentile). The student had relative weaknesses in processing speed and working memory, and both fell in the high average range. On a measure of academic achievement, the student scored between the 55 and 95th percentiles on tasks involving word reading, reading comprehension, and oral reading fluency and in the average range in written expression, mathematics, and math fluency.

The April 13, 2022, CSE concluded “that the student presented with high average to superior cognitive abilities and academic abilities according to assessments, and that staff from the student’s non-public school reported that he performed at or above grade level in reading, writing and math…” The CSE concluded that “the student was able to access the general education curriculum” and “found that the student was not eligible for special education services and programs”. Upon the parents’ appeal, the impartial hearing officer (IHO) agreed with the CSE. The IHO concluded that “because, although the student was diagnosed with ADHD, ODD and anxiety, the student’s behaviors in the classroom did not negatively affect the student’s ability to achieve grade-level performance”.

As indicated below, the SRO disagreed and found that the student was a student with a disability as a student with another health-impairment. “[T]he IDEA defines a child with a disability as a child with specific physical, mental, or emotional conditions, including a learning disability, who by reason thereof needs special education and related services.” See 34 CFR 300.308[a][1]; 8 NYCRR 200.1[zz]. Applicable federal and State regulations set forth a number of “disability categories”, including “other health-impairment”.

See 34 CFR 300.8[c][1 – 13]; 8 NYCRR 200.1[zz][1-13].

“Under State and federal regulation, other health-impairment is defined as ‘having limited strength vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that…is due to chronic or acute health problems such as … attention deficit hyperactivity disorder’[ADHD] that adversely affects a child’s educational performance’”. 34 CFR 300.8[c][9]; 8 NYCRR [zz][10].

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In determining whether the student fell within any of the disability categories, regarding the category other health-impairment, the SRO felt it relevant that the student had “received several diagnoses including a diagnosis of ADHD”. Upon a full review, the SRO concluded “that the evidence indicated that the student has a health condition that would fall within [] those identified in the other health-impairment category”. He pointed out that “the student’s child psychologist, as well as the neuropsychologist who evaluated the student, agreed that the student met the criteria for ADHD and the district provided no evidence or argument to the contrary”. “Moreover”, the SRO said that “oral reports by the student’s parents and teachers at the CSE meeting indicated that the student required prompts to stay focused and refrain from calling out, reminders to calm down or stop when being silly, and redirection to follow class rules and procedures.”

With respect to the requirement that the disability category “adversely affects a child’s educational performance”, the SRO pointed out that the “student is extremely bright”. He referenced the parents’ neuropsychological report which “stated that the student’s performance on standardized academic measures revealed that his true academic skills were at much higher levels than the teacher observed on a day-to-day basis in the classroom setting, which indicated that other factors were serving as barriers to the student demonstrating his true and very welldeveloped academic abilities in school”. The SRO pointed out that upon his review of the entirety of the evidence in the case, “the student tended to need behavioral intervention to appropriately attend to his classroom routines”. Further, the SRO pointed out that “the student demonstrated need for sustaining attention to school work, and completing school work and he required a level of support in the classroom in order to achieve this”. The SRO concluded that “[o]verall, the evidence above ever so slightly favors the view that the student’s ADHD and behavior concerns adversely affects this very intelligent student’s classroom performance”.

As indicated above, “in order to be deemed eligible for special education, a student must, by reason of such disability, need special educational and related services.” See 34 CFR 300.308(a)(1); 8 NYCRR 200.1(zz). Regarding this, the SRO pointed out, among other things, that the November 2020, private neuropsychological evaluation recommended supportive services and also classroom recommendations, that the updated neuropsychological report recommended individual and group counseling, OT, and recommendations for behavioral interventions including a behavioral intervention plan.

Based on the presence of one of the requited disability categories, that the student’s condition “adversely affects a child’s educational performance”, “and who by reason thereof, needs special education and related services”, the SRO concluded that “the evidence supports the parent[s]’ view [on appeal] that the student should have been found eligible for special education as a student with another health-impairment”.

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EVALUATION AND REEVALUATION Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: evaluation, deference to SRO Dispute: In light of confusion over certain testing, whether the CSE reviewed sufficient evaluative information in preparation for the CSE meeting and had sufficient evaluative information to develop the student’s IEP. Conclusion: The District Court determined that notwithstanding confusion regarding certain testing, the CSE reviewed sufficient evaluative information in preparation for the CSE meeting and had sufficient evaluative information to develop the student’s IEP. Key Take Away: There may be circumstances in the development of an IEP where there is some confusion in the data before the CSE. The key, however, is whether this confusion is acknowledged and whether, overall, the CSE had sufficient evaluative information to develop the student’s IEP. Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the CSE did not have sufficient evaluative information to develop the student’s IEP. Specifically, the parent claimed that the CSE did not address confusion over certain testing information. The SRO disagreed. The SRO “acknowledged” the confusion but concluded that overall, the CSE had sufficient evaluative information to develop the student’s IEP. The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the CSE had insufficient evaluative information to develop the student’s IEP. The Magistrate determined to give deference (to rely on) to the SRO’s determination.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have deferred to the SRO because the SRO did not adequately address the confusion in the evaluative information in front of the CSE. The Judge disagreed. He pointed out that the SRO had addressed the testing issue and determined that sufficient evaluative information existed for the CSE to develop the student’s IEP. The Judge concluded that the SRO’s decision should be given deference.

Issue: Evaluation

Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024)

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Dispute: Whether the district was required to provide the student with an occupational therapy evaluation.

Conclusion: The district was required to provide the student with an occupational therapy evaluation.

Key Take Away: An evaluation is required when there is an indication of the need for such an evaluation. It does not matter that a student has already been evaluated within the last three years.

Reasoning: The student in this case has received diagnoses of attention-deficit hyperactivity disorder (ADHD) and oppositional defiant disorder and was eligible to receive special education services as a student with an other health-impairment. The student’s IEP for the 2021-22 school year included ICT services, small group counseling, individual counseling, and individual parent counseling and training.

When demands on the student increased in winter 2021-22, he began engaging in behaviors such as aggression, noncompliance and property destruction. In February, the student was suspended for five days after he engaged in a major behavioral incident. The CSE held a manifestation determination review meeting and determined that “a nexus was found between the student’s behavioral incident and his educational classification…”

The CSE team then met and updated the student’s IEP with a program that included a 1:1 aide and increased counseling as well as increased behavioral intervention services. The CSE did not determine to provide an occupational therapy evaluation for the student. At two additional CSE meetings, the CSE did not determine to provide the student with an occupational therapy evaluation. Subsequent to the student’s behavioral incident and for the balance of the 2021-22 school year, the student resisted attending his group and individual counseling sessions.

Prior to the major behavioral incident and to at least mid-2022, the district developed a number of FBAs and BIPs. The parent filed a due process complaint notice on June 2, 2022, claiming that the district denied the student a FAPE for the 2021-22 school year.

The CSE met a number of times after the parent filed the due process complaint. It added an additional IEP recommendation of a scribe daily and/or speech-to-text devices for use during writing assignments on the basis of its own evaluation. At some point the parent requested an occupational therapy evaluation that was within the three-year period from the student’s last evaluation.

During the impartial hearing, the parent claimed that the district failed to evaluate the student for occupational therapy despite the student’s obvious needs in writing skills and functional 309

communication. “The district argued that the independent occupational therapy evaluation came after the school year ended…”.

The IHO determined that the district denied the student a FAPE. The IHO determined that a district is required to reevaluate students at least once every three years but that additional evaluations are warranted within that three year period if the district needed additional information.

The IHO found that an occupational therapy evaluation was necessary based on the expert testimony presented and the hearing record. Further, the IHO determined that the district witnesses linked the student’s behaviors with the sensory deficits they had observed. With respect to the district’s argument, the IHO held that the deficits identified by the evaluation almost certainly existed when the parent asked for the evaluation. The IHO agreed that the student should have been evaluated for occupational therapy after the February 2022 incident and that the district therefore denied the student a FAPE by failing to recommend an evaluation.

On appeal to the State Review Officer (SRO), the SRO concluded that “the student’s struggle to complete and resistance to writing tasks, which suggested the need for an OT evaluation, [was] supported by the hearing record”. Further, the SRO concluded that there was sufficient evidence that writing was a trigger or nonpreferred activity for the student. The SRO also pointed out that “[t]he district and the parent agreed to [a] trial providing the student with a speech-to-text device and/or scribe in order to avoid triggering the student by asking him to write, and the first-grade special education teacher testified the student was compliant with writing activities when a scribe was used”.

The SRO determined that the record supported the need for an occupational therapy evaluation based on several examples provided at the hearing regarding the student’s reluctance to engage in writing activities.

Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) Issue: classification, sufficiency of evaluative information Dispute: Was the parents’ claim that the student should have been found eligible for special education as a student with a traumatic brain injury as opposed to a student with multiple disabilities result in a denial of a FAPE based on the absence of sufficient evaluative information.

Conclusion: The parents’ claim that the student should have been found eligible for special education as a student with a traumatic brain injury and not as a student with multiple disabilities did not result in a denial of a FAPE based on the absence of sufficient evaluative data.

Key Take Away: The fact that there is a disagreement about the disability-based reason a student should be considered eligible for special education did not support a claim that the CSE lacked sufficient evaluative information to develop an appropriate IEP. 310

Reasoning: The student in this case has received special education as a student with multiple disabilities. The student attended special education public school from 2006 until January 2020, at which time the parents unilaterally placed him at a private school.

The parents filed a due process complaint notice on April 29, 2020. They asserted that the district failed to provide the student with a FAPE for the entirety of his school career from 2006-2007 to the 2019-2020 school year. 55 Among other things, and asserting a denial of a FAPE. “[the parents] sought tuition and services reimbursement for [the student’s] attendance at [the private school] for the 2019-2020 school year as well as compensatory services…” The parents argued, among other things, that the student was denied a FAPE as the CSE determined he was eligible for special education services as a student with multiple disabilities as opposed to a student with a traumatic brain injury. This, the parents asserted “prevented [the student] from receiving the neuropsychological evaluation necessary for developing appropriate recommendations for special education services. The parents “contend this prevented [the district] from formulating a legally adequate IEP”.

Upon review, and “[a]mong other things, an IHO denied the parents’ claim and this was upheld by the SRO. “[The parents] … brought suit in the district court seeking review of the SRO’s determination. The district court deferred to the SRO’s determinations and granted [the district’s] motion for summary judgment”.

The parents appealed to the Court of Appeals. With respect to the parent’s claim, the Court of Appeals concluded “[t]he record showed that the CSE reviewed numerous assessments related to [the student’s] academic skills, cognitive skills, behavioral skills, and physical abilities to develop the IEPs for the 2018-19 and 2019-20 school years”. The Court went on to say that “[w]hile [the parents] think that a neurophysiological evaluation would have been the best starting point to determine [the student’s] functioning … [the district’s] failure to conduct the evaluation does not render the IEP legally inadequate”.

“Accordingly, [the Court] deferred to the SARO’s conclusion that the CSE considered sufficient evaluative evidence in formulating the IEPs. Application of the Bd. of Edu., Appeal No. 23-127 (Aug. 21, 2023) Dispute: Did the district have sufficient evaluative information to develop an IEP.

The administrative officials and the Courts agreed that the parents’ claims prior to April 30, 2018 were timebarred.

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Conclusion: The SRO upheld the IHO that the district did not offer the student a FAPE and concluded that the district did not show that it had sufficient evaluative information to develop an adequate IEP.

Basis of the SRO’s Decision: This case concerns a student who was 17 years old during the 2020-21 school year and had been unilaterally placed at a private school since 2017. The student had received diagnoses of autism, attention deficit hyperactivity disorder (ADHD) and Tourette Syndrome.

On appeal, the district argues that notwithstanding the IHO’s conclusion, the information before the CSE provided sufficient information about the student’s needs to develop an IEP. The SRO concluded that “the evidence [was] unclear with respect to what evaluative information the May 20 CSE actually relied on when formulating the student’s programming and developing his IEP for the 2020-21 school year”. Regarding what district documents were reviewed, the district psychologist testified that she “typically reviewed all documents in the district’s electronic internal system”. The SRO pointed out, however, that during her testimony, the district psychologist “did not actually identify any of the documents in the student’s record or note that any of the evaluative information in the electronic system was reviewed for the May 2020 CSE meeting”. The district psychologist testified that, for the May 2020 CSE meeting, she did review a November 2019 progress report from the private school and that report was a part of the record of the impartial hearing. Regarding this, the SRO noted that the May 2020 IEP “contained information that appears verbatim in the student’s November 2019 [private school] progress report.” Additionally, after testifying what “generally” happened at a CSE meeting, the school psychologist said that in this case, “the parent and the consulting teacher from [the private school] contributed during the [] CSE meeting”. However, the SRO pointed out that while “the hearing record showed that the [private school] consulting teacher and the student’s ELA teacher provided input during the May 2020 CSE meeting, the present levels of performance in the May 2020 IEP do not reflect any information regarding the student’s needs attributed to the verbal input of [the private school] representatives”. The SRO wrote that “the narrative information included in the May 2020 IEP [appeared] to be drawn from the student’s November 2019 progress report from [the private school]”. However, the consulting teacher at the private school testified that before the CSE meeting she provided the district with a January 2020 progress report. The SRO noted that it was unclear what that progress report said as it was not a part of the record. However, the consulting teacher at the private school “testified that the January 2020 report was not directly discussed or referred to during the May 2020 CSE meeting but that verbal information provided by her and the student’s ELA teacher included information contained in the report”. The SRO “thus” found that “it is unclear whether the information on the student’s needs included in the May 2020 IEP is consistent with the information provided in

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the January 2020 [private school] progress report or with verbal information provided by [the private school] representative during the May 2020 CSE meeting”.

Further, and “adding to the inconsistencies” the SRO said was the fact that the June 2020 prior written notice, which is required to provide “a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed action, only identified a “teacher report dated April 20, 2020”. The SRO said here that the “district [did] not present evidence with sufficient reliability to show what information the IEP was based on”.

The SRO concluded that “[g]iven the numerous discrepancies in the evidence, it is unclear what information was really utilized by the CSE as the IEP lacks any specific description of the assessments or reports that were before the CSE, and the prior written notice identified a different [(later teacher report)] from April 2020 than the November 2019 report that was offered into evidence, which in turn was different than the January 2020 report identified [by the private school] staff”.

Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) Dispute: Did the district evaluate the student’s visual needs?

Conclusion: The district did not evaluate the student’s visual needs, which violated the student’s right to a FAPE. Basis of the SRO’s Decision: Medical diagnoses by an ophthalmologist indicated “amblyopia in the [student’s] left eye, exotropia in the left eye, posterior lenticonus, and blindness in both eyes”. “[T]he student should be considered blind and receive full vision services”. Among other things, the parent asserted in the due process complaint notice that the student “exhibited characteristics of cortical visual impairment (CVI) and that the district’s failure to recommend vision education services (VES) constituted the denial of a FAPE for the student”. “[T]he IHO found that the district failed to evaluate the student’s needs related to her exhibitions of CVI, which [the IHO] held to be an issue that the district should have identified as far back as 2009, and that the district’s failure to evaluate the student’s vision needs or recommend vision education services constituted a gross violation of the IDEA” which in part supported a finding that in addition to tuition reimbursement the student was due “four years of extended eligibility of special education services at a private school until [the student] reached the age of 25”. The SRO concluded that there was “nonretrospective evidence in the hearing record that supports the IHO’s determination that the district failed to sufficiently evaluate the student’s vision needs or offer vision services” and that “[a]s such, the IHO’s determination that the district denied the student a FAPE … must be upheld”. The SRO also agreed with the IHO that the parent’s request for two years of tuition reimbursement was an appropriate remedy.

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However, the SRO also concluded that the evidence was not sufficient to support a finding that an appropriate award of compensatory education included “four years of extended eligibility of special education services until [the student] reached the age of 25”. With respect to this, the SRO said that the student had at least two or more years of special education before her right to special education would expire; that as a result of the decision that the district had denied the student a FAPE, the student had been awarded tuition reimbursement for the 2020-21 and 202122 school years; that during this two year period, the student had a right to challenge future CSE recommendations; “that the student had been making gradual progress in the district program during the school years at issue” and was “making additional progress in the unilateral placement”; that regarding her vision needs, the record showed that despite the district’s violations of a FAPE, “the student was able to make progress and access her education”; and that the student began receiving vision education services at the private school during the 2020-21 school year and “had been steadily progressing in almost all of her [private school] goals [including] achieving two of her vision goals”. In light of the “mitigation” shown, the SRO concluded that the IHO’s award of two years of tuition reimbursement at the private school represented “a proportionate and appropriate remedy for the district’s denial of a FAPE to the student”. The SRO also pointed out that the IHO had based the finding of a “gross” violation of FAPE, among other things, on the conclusion that the denial of FAPE had begun in the 2008-09 school year. With regard to this, the SRO said that she “was not aware of any authority from the Second Circuit Court of Appeals that would support the broad premise that relief could be awarded to remedy some portion of violations that occurred in school years that were barred by the statute of limitations (but see G.L. v Ligonier Valley Sch. Dist. Authority, 802 F.3d 601, 616 [3rd Cir. 2015])”. She also found that “[i]n any event, here the IHO failed to explain why the student’s district-funded attendance at [the private school] [and the services that she received there] was not adequate to remedy the FAPE denial, and therefore the IHO’s award was inappropriate on equitable grounds”. Finally, the SRO referenced the IHO’s remedy and pointed to the fact that it involved “a prospective placement at [the private school] for four years” which, “under certain circumstances, [had] the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs”.

Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) 56 Dispute: Whether the CSE had sufficient evaluative information to develop an appropriate IEP. This SRO decision addresses in relevant part procedural issues relating to (1) the sufficiency of evaluative information; (2) the parent’s receipt of the IEP; and (3) the availability of information regarding the assigned publicschool site relative to the school location letter. As indicated above, the SRO did not find that issues relating to evaluative information resulted in a denial of a FAPE alone. However, the SRO also concluded that each of the three issues “contributed to” the violation of a FAPE which is to say that these three procedural issues when taken together or on a “cumulative” basis resulted in the denial of a FAPE to the student. See L.O. v. New York City Dep’t of Educ., 822 F.3d. 95,123-24 (2d. Cir. 2016); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012).

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Conclusion: reversing the IHO, the SRO concluded that the CSE did not have sufficient evaluative information to develop an appropriate IEP; which contributed to a denial of a FAPE. Basis of the SRO’s Decision: In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a highly structured learning environment and had needs relating to behavior management, language development, and social skills.

The district’s CSE met on April 23, 2020 to develop the student’s IEP for the 2020-21 school year.

According to the prior written notice, the CSE relied on a number of documents to develop student’s IEP. These included a February 13, 2019 classroom observation done as part of the student’s turning five evaluation, a February 1, 2021 teacher’s report from the student’s private school, and February 1, 2020 progress reports from the student’s speech-language pathologist, occupational therapist, and physical therapist. The CSE’s district representative testified that she “did not believe the student had any recent testing” and that “she did not recall when the last psychological evaluation, speech-language evaluation, OT evaluation, PT evaluation, social history or classroom observation was completed”. With respect to the February 13,2019 classroom observation, the district representative testified that “she did not recall reviewing [that] prior to the April 2020 CSE meeting” and “nor did she believe that she discussed the results with the author of the report”. Additionally, “[a]t the time of the hearing” the district representative also testified that she “could not recall the last time specific evaluations were conducted”. Although the district representative and the CSE had access to records through the district’s “SESIS” system it is not clear whether they had this access prior to or at the time of the meeting and whether they had access to the dates and types of evaluations or the text as well.

She also testified that at the time of the CSE meeting, the district was operating remotely due to COVID 19 “so there was no real testing being completed and no assessments could be given”.

The district representative further testified that the CSE relied on the student’s private school reports “because, at the time, they were the ones working directly with the student”. Her testimony was also that the district “developed an assessment-like checklist” for the teachers at the private school to complete but that this was not done as private school staff “felt that their progress reports were sufficient and encompassed everything about the student”. The district representative also “testified that the information the parent and teachers communicated at the time of the April 2020 CSE meeting suggested that the progress reports encompassed the student’s current levels of performance”.

The SRO reviewed in exhaustive detail the information in the classroom observation, the teacher’s progress report, and the speech-language, OT, and PT progress reports. The SRO concluded that given these documents as well as the teacher and parent’s input at the CSE meeting, “appear[ed]” to have provided “adequate information regarding the student’s strengths and needs”.

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At the same time, the SRO also concluded that the hearing record “lacks information that should have been available to the April 2020 CSE”. Regarding this, the SRO cited to State and federal regulations relating to, among other things, the necessity for the “CSE to consider the results of the initial or most recent evaluations” “[i]n developing the recommendations for a student’s IEP and when conducting an annual review of the student’s IEP”. See 8 NYCRR 200.4(d)(2); (f)(iii); 34 CFR 300.324(a)-(b).

The SRO further pointed out that there was no information in the record from which it could be reliably determined that evaluative information other than the classroom observation was a part of the student’s turning five review. Likewise with respect to the April 2020 CSE meeting, other than the 2019 classroom observation and private school reports, as indicated above, there is no information in the record to show when and if the CSE considered the most recent evaluations of the student and nor was their evidence produced at the hearing to show that the student had been properly evaluated; “a procedural violation” the SRO said.

The SRO said that “most troublingly, by not including copies of the student’s most recent evaluation in the hearing record (whether or not it was reviewed by the April 2020 CSE), the district has made it impossible to properly review some of the evaluation claims contained within the parent’s due process complaint notice”. For example, these included claims that the district “failed to conduct sufficient evaluations of the student prior to the April 2020 IEP review; failed to include the student’s parents in the evaluation process: failed to review the already existing data and decide what additional data/evaluations were required; and that these failures rendered the CSE unable to create an appropriate IEP”. Claims to answer, the SRO said, which would require “knowing when the student was last evaluated, what evaluative information was available to the CSE, or what information about the student was contained within the missing evaluations…”; all information that was not available in the record. The SRO pointed out here that “the Second Circuit has held that the failure to memorialize which evaluative information a CSE reviewed constitutes a serious procedural violation.” See L.O. v. New York City Dep’t of Educ., 822 F. 3d. 95, 109-11 (2d Cir. 2016).

The SRO reinforced this view by concluding that as a result of “the failure of the CSE to document what, if any, information from the student’s initial evaluation was considered in developing the April 2020 IEP, other than the classroom observation, precludes me from finding that the CSE fulfilled its obligation to consider the student’s initial evaluation, and testimony referencing the general availability of such materials though “SESIS” does not suffice to overcome that conclusion”. “Accordingly”, the SRO said, “given the district’s failure to reference the student’s last evaluation in the IEP or prior written notice or to have the evaluative materials at issue admitted into evidence at the impartial hearing impedes any adjudication of the specific claims raised by the parent with respect to the sufficiency of the district evaluations” The SRO found, as a result, that the district’s failure to consider the student’s initial evaluation was a procedural violation that contributed to a denial of a FAPE. 316

Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Whether the CSE properly reevaluated the student.

Conclusion: The Court agreed with the SRO that the CSE properly reevaluated the student.

Basis of the Court’s Decision: In this case, the parents asserted “that the CSE failed to conduct appropriate evaluations.”

The Court pointed to relevant Second Circuit caselaw for the proposition that “the IDEA’s mandatory initial evaluation and reevaluations are purposely comprehensive”. More specifically, the Court advised that “the IDEA requires that these evaluations assess the child in all areas of their disability” [see 20 U.S.C. 1414; see also 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii)] and that the evaluations must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” See 34 CFR 300.304(c)(6); see also 8 NYCRR 200.4(b)(6)(ix).

In this case, the Court said that the parents only argued “in a conclusory fashion” that the required level of evaluation relative to the student’s June 2019 IEP “did not occur.” Upon review and regarding this, the SRO had concluded that the student had been evaluated prior to the CSE meeting in question. The Court agreed. It pointed out that the CSE considered five evaluations prior to the June 2019 CSE meeting, and in particular, a social history update, a psychological evaluation, classroom observations, a Vineland 3 evaluation, and a teacher report. The parents agreed with this but complained that the district should have considered “a placement in a nonpublic school and conduct the necessary evaluations for such consideration and any other evaluations prior to scheduling the [CSE] meeting.” The Court indicated that such evaluations were not relevant as “the IDEA only requires that additional assessments be conducted to fill in gaps in the initial review of existing evaluative data”. Regarding this, the Court concluded that the parents had “pointed to nothing in the record that would suggest that these additional evaluations were necessary in the CSE’s determinations”.

Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023) Dispute: Whether the IHO’s determination that the district did not base its IEP on sufficient evaluative information was correct and denied the student a FAPE. Conclusion: The SRO upheld the IHO’s determination that the district did not have sufficient evaluative information to develop the student’s IEP and that the district therefore denied the student a FAPE Basis of the SRO’s Decision: In this case, the April 2019 psychoeducational evaluation, which was prepared as part of a reevaluation, in relevant part advised that because of the student’s behaviors, the evaluation 317

“may not be a valid and reliable assessment of [the student’s] current level of cognitive and academic abilities”.

The IHO cited to this and “concluded that the record did not support the district’s claims that it had sufficient evaluative information” based on the record before it and further “that the IEP was not developed based upon valid and reliable evaluations”.

The district admits that the statement in the psychoeducational evaluation but argues that the information otherwise in that report included much relevant evaluative information and that between that and the other information before the CSE, the CSE had sufficient evaluative information to develop an appropriate IEP. The SRO concluded that “rather than focusing on the limitation contained in the April 2019 psychoeducational evaluation, the parties and the IHO should have focused on whether the May 2020 CSE had sufficient evaluative information available from a variety of sources to develop the student’s IEP for the 2020-2021 school year”. With respect to this, the SRO concluded that “review of the evidence in the hearing record supports the IHO’s conclusion that the district lacked evaluative information regarding the student’s stutter and sensory and emotional regulation” The SRO pointed out that the relevant social history and psychoeducational evaluation “did not mention the student’s stutter or sensory and emotional regulation needs”. Further, while the CSE recommended that the student receive speech-language therapy, none of the annual goals related to that focused on the student’s stuttering. Additionally, the SRO concluded that the evidence in the record regarding the student’s stutter did not make it clear that the IEP addressed the student’s needs as it should have. Moreover, the SRO concluded that the evaluative information before the CSE did not “reflect evaluative information about the student’s sensory and emotional regulation”. Additionally, the SRO advised that the IEP contained only limited and insufficient information regarding the student’s “sensory and emotional regulation”. The SRO further pointed out that the while the IEP recommended OT for the student, the OT annual goals “appeared unrelated to any sensory regulation needs the student may have been exhibiting”.

With respect to the student’s emotional needs, the IEP recommended that the student receive counseling and included some counseling goals. However, the SRO said that “it [was] difficult to ascertain whether those goals appropriately addressed the student’s emotional regulation skills and needs, if any, without further evaluative information as to what the student’s needs in those areas were at the time of the CSE meeting”.

Based on the above, the SRO concluded that there was “insufficient information available in the hearing record to overturn the IHO’s determinations that the May 2020 CSE lacked sufficient

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information regarding the student’s sensory and emotional regulation or related to his stutter”57 and that therefore “the district denied the student a FAPE”.

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the CSE’s initial evaluation properly evaluated the student.

Conclusion: The Court upheld the SRO’s conclusion that the CSE’s initial evaluation properly evaluated the student.

Basis of the Court’s Decision: In this case, the parties agree that the CSE “failed to conduct all evaluations required by State regulation.” See 8 NYCRR 200.4(b)(1). In particular, the CSE did not conduct its own speech and language evaluation. However, the CSE substituted a district evaluation with one provided by the parents and the Court found, citing authority, that this did not deprive the child of a proper evaluation. See M.H. v. New York City Dept of Educ., 10 CV-01042, 2011 WL 609880, at *9 (S.D.N.Y. Feb. 16, 2011) (“The IDEA clearly permits parents to obtain private testing and nowhere implies that local schools must corroborate private results before using them.). With that in mind, the SRO found and the Court agreed that the information the CSE did have in front of it was sufficient – including the private evaluation that the plaintiff had provided – and which enabled the CSE to make an appropriate determination of the student’s auditory processing abilities. The Court held that this was a procedural violation and that as such, a denial of FAPE would be shown only if it impended the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or caused a deprivation of educational benefits. The Court said that here the fact that the parents provided their consent to the evaluation did not mean that when the evaluation was not performed, the parents were impeded in the process. As indicated, the Court said that the CSE properly substituted the parents’ evaluation for one done by the district. The Court pointed out here that the parents also attended the CSE meeting.

The Court also concluded that “[a] review of the entire record indicated further that the CSE would have come to the same conclusion as to [the student’s] ineligibility whether it had before it all statutorily required information or not and, therefore any such violation did not deny [the student] a FAPE”. The parents also argued that the CSE did not adequately consider the information it did have and, apparently, that the CSE was required to review all relevant documentation/information before the CSE meeting. The Court concluded that the parents provided no authority for this, that the CSE had time to review the information “in an efficient manner during a one-hour session, and that three levels of review (by the IHO, the SRO, and the Court) had determined by substantial consideration that the totality of the record supports the The SRO decision pointed out that while referenced on occasion, the December 2019 private school progress report, which may have included relevant information regarding the student’s stutter and sensory and emotional regulation, was not included in the hearing record or provided to the SRO for review.

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CSE’s determination that the student was not eligible under IDEA and that this compensated for any purported lack of consideration by the CSE. The Court upheld the SRO’s determination.

O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) Dispute: Whether the District conducted evaluations that assessed the student in all areas of suspected disability and otherwise adequately evaluated the student.

Conclusion: The Court upheld the ALJ and determined that the District appropriately evaluated the student during his kindergarten year but did not do so during his first-grade year.

Basis of the Court’s Decision: Prior to offering a student special education services, a District must conduct a full and individual initial evaluation meant to ensure that the student receives an assessment in “all areas of suspected disability” See 20 U.S.C. Section 1414(a)(1)(A), 1414(b)(3)(B). Additionally, the IEP Team is to develop an IEP in consideration of, inter alia, the strengths of the child, the concerns of the parents, the results of the initial evaluation or most recent evaluation of the child, and the academic, developmental and functional needs of the child. See 20 U.S.C. 1414(d)(3). Further, in circumstances of a reevaluation, the student must also be evaluated in all areas of suspected disabilities. See 20 U.S.C. 1414(b)(3)(B).

In this case, prior to the beginning of the student’s kindergarten year, the student’s pediatrician referred the student to a psychologist to see if the student should be formally diagnosed for autism. The psychologist was unable to complete his analysis because of the student’s behavior.

The CSE met during the first part of the student’s kindergarten year. After the parent reached out, the district conducted a “Multidisciplinary Psychological Evaluation.” The district assessed the student for ADHD which was the primary issue identified in medical records and by District employees. As a result of this assessment the District, in an October 31, 2017 meeting, offered the student an IEP. The parent asserts that the district should have evaluated the student for autism. The ALJ found that the district was not on sufficient notice to have an obligation to assess the student for autism or its related symptoms. The Court upheld the ALJ’s findings. It found that the student’s medical records reflected that the student’s primary diagnosis and educational concern was ADHD. Further, as indicated, while the parent had consulted a psychologist to assess the student for autism prior to the beginning of the school year, the Court pointed out that the psychologist was unable to complete the autism assessment and did not qualify the student for autism services at that time. Additionally, the Court pointed to the fact that while the student was observed by District employees to have an inability to stay on task, the student could be redirected back, which, based on the record, indicated symptoms of ADHD and not autism.

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The parent further asserts that the student should have been assessed for autism during the balance of his kindergarten year. The ALJ disagreed. The Court agreed with the ALJ. It reasoned that for all of the prior reasons plus the fact that throughout the student’s kindergarten year, District staff observed “continued progress” in the student’s education and also because the student had made several friends as he grew accustomed to the school environment there was insufficient reason to suspect that the student had autism. The Court also pointed out that neither the student’s parents nor his teachers requested a reassessment for autism.

The parent also asserts that the student should have been assessed for autism during his firstgrade year. The ALJ agreed and the Court upheld that determination. Regarding this, the Court specifically pointed to the fact that by this time the student’s psychologist had provided the student with a formal diagnosis of autism prior to first grade and that, additionally, the parents had officially requested that the student be assessed for autism. The Court advised that these factors put the District on notice of the student’s autism.

EXHAUSTION OF ADMINISTRATIVE REMEDIES DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) Issue: exhaustion of administration remedies Dispute: whether (some of) the parent’s claims should be dismissed because the parent did not exhaust her administrative remedies Conclusion: The District Court determined that the parents had exhausted a number of her claims and so could proceed directly to Court on those claims.

Key Take Away: A parent need not exhaust systemic policy-based claims such as a district is violating the IDEA because it is making available to students only a “limited menu” of services if the claim shows that more than the particular student bringing the claim is affected by it. The parent mush show a factual basis from which the Court might infer that the student’s experiences are representative of an endemic problem. The issue cannot merely reflect a student-specific dispute.

Further, claims in which the parent was successful in, but the district did not appeal, may be raised in court. Moreover, the district should be put on notice of claims of violations of Section 504 and Section 1983. Finally, claims regarding a student’s pendency placement reflect an exception to the exhaustion requirement.

Reasoning: At the time that the parent went to federal court, the student was an eleven-year-old boy who had been diagnosed with autism.

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Over the course of the 2017-2018 through the 2023-2024 school years, the parent filed six due process complaints about the district’s conduct. In a number of cases, the parent was successful in her claim and the district did not appeal. Further the District Court said that the parent put the district “on notice” of her Section 504 and Section 1983 claims. Additionally, the parent said that the district violated the parent’s “stay-put” rights. The parent also said that a number of her complaints involved violations of “policy and procedures” The parent went to federal court and asked for the District Court’s assistance. The parent claimed that the district had violated the IDEA, Section 504 of the Rehabilitation Act of 1973, and Section 1983. The district argued that the Court lacked the ability to hear numerous of the parent’s claims because the parent had “failed to exhaust administrative remedies”. The parent answered that (1) she did exhaust many of her claims in that a number of IHO decisions in her favor were not appealed by the district as required, (2) whether a student’s pendency placement has been complied with is not subject to the exhaustion requirement, and (3) she has raised a number of “systemic, policy-based allegations” that are exempt from the exhaustion of administrative remedies requirement.

The District Court explained that the IDEA requires a party to exhaust all of its administrative remedies before bringing an IDEA claim to court. Not doing so will not allow the Court to consider the claim.

The District Court looked at the parent’s claims to see whether any should be dismissed for a failure to exhaust administration remedies. The District Court concluded that the parent had exhausted her administrative remedies in all claims in which she had prevailed but the district did not appeal. The District Court also said that the parent put the district “on notice” that she believed that the district had violated Section 504 and Section 1983 and that therefore she had exhausted her remedies regarding those claims.

The District Court also considered the parent’s argument that she did not have to exhaust her administrative remedies to claims that the district had violated the student’s rights under pendency. The District Court explained that the Second Circuit Court of Appeals had been clear that the question of whether a district has violated a student’s pendency rights fell within one or more of the exceptions to the exhaustion requirement. The District Court concluded that therefore the parent had exhausted her administrative remedies to her claims that the district did not comply with the student’s pendency rights.

Finally, the parent argues that she asserts “systemic, policy-based allegations that are exempt from the exhaustion requirement” as it would be futile to complete the administrative review process; this because the IHO did not have the power to correct the systemic violation. These claims included that (1) the district “refus[ed] to provide 1:1 instruction, ABA services, extended day or home-based services on [the student’s] IEPs that he required for a FAPE, even despite multiple requests made by [the parent] and to include these services on all of [the student’s] IEP,” (2) “predetermining [the student’s] IEPs by limiting the availability to the services the 322

[district] can offer”, (3) “forcing [the student] to constantly engage in litigation to obtain and maintain [the student’s] required services”; (4) “failing to implement [the student’s] services granted under pendency in each of the cases at issue” and (5) “failing to .implement the decisions issued by all of the IHOs in the cases at issue”.

The District Court pointed out that the assertion of systemic violations “must allege more than individual grievances unique to the student at issue.” Moreover, the District Court said that it was “not enough just to say that [the district] has policies, practices, and procedures that violate the IDEA”. The District Court said that the lawsuit must give “a factual basis” from which “the Court might infer that [the student’s] experiences are representative of an endemic problem”.

The issue cannot “merely reflect a student-specific dispute which can be resolved through the administrative process”.

The District Court looked at the claims by the parent that the district’s “policy and practices” had affected the student. The District Court concluded that “[t]he only one of the purportedly generalized policies that [the parent] properly identifie[d] as a systemic practice is [the district’s] alleged policy of limiting the menu of services that a district can offer when creating a student’s IEP”. In this case, this was a policy of not offering ABA services and 1:1 instruction on a student’s’ IEPs absent litigation.

Here, the District Court concluded that some of the parent’s claims did not exhaust administrative remedies and that some did.

M.G. v. Rye City Sch. Dist., No 23-CV-9742 (CS) (S.D.N.Y. Jan. 30, 2025) Issue: exhaustion of administrative remedies Dispute: Did the parents exhaust their administrative remedies under the IDEA prior to going to Court.

Conclusion: The District Court concluded that the parents did not exhaust their administrative remedies under the IDEA and that therefore the Court had no subject matter jurisdiction to hear the case.

Key Take Away: On an appeal to the SRO, the parent needs to remember “to serve” the district (give to the proper person) the appeal papers within 40 calendar days of the date of the IHO decision. Only for “good cause” – an event over which the parent has no control -- can the SRO excuse late service. Further, for the SRO to consider the good cause it is necessary for the parent to say in the appeal papers what the “good cause” is to allow the SRO to review it.

Reasoning: The student in the present case is a former district student with several disabilities and is eligible for special education services.

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The student’s parents filed a due process complaint in June 2021 that the district had failed to provide the student with a FAPE for the 2019-2020 and 2020-2021 school years. The IHO issued an initial order granting the district’s request that certain claims be dismissed. After a multiday hearing, the IHO dismissed the balance of the parents’ complaint.

The parents appealed the decision to the SRO. By State Regulations, such an appeal must be served upon the opposing party (the district) within 40 calendar days from the date of the IHO decision. The deadline for the parents to serve their appeal upon the district was May 26, 2023 (40 calendar days from April 16, 2023, the date of the IHO decision). However, the parents did not serve their appeal on the district until May 30, 2023. The SRO ruled that the parents did not serve their appeal on the district in time and dismissed it. The SRO further pointed out that nowhere in the parents’ petition for review did they include any reason why the petition was served late. This foreclosed the SRO from making a decision that there was “good cause” for the parents to serve the petition late.

The parents started a lawsuit in the United States District Court for the Southern District of New York in November 2023. The parents argued that the district had closed its offices on May 26, 2023 to celebrate Memorial Day, that the date was therefore a legal holiday, that they were unable to serve the complaint on the district because of that, and that it was proper to serve the appeal the following Tuesday, May 30, 2023; which they did. The district argued that the parents’ late service of their appeal to the SRO on the district was “a failure to exhaust their administrative remedies” and therefore that the District Court lacked subject matter jurisdiction.

The District Court pointed out that in circumstances where the appeal from the IHO is served on the school district late, the SRO may dismiss it or, for good cause shown, may excuse it. The District Court also pointed out that “good cause” means an event over which the serving party has no control and that in order to be timely served, the “good cause” must be set forth in the petition for review. The District Court said that it would uphold the IHO’s decision unless it was “arbitrary and capricious”, which is a “rule of reasonableness” with “deference” given to the SRO. The District Court decided that the SRO’s decision was not arbitrary and capricious. It pointed out that the SRO’s decision was in line with the State appeal and service requirements. The District Court also pointed to the fact that in addition to the parents’ failure to provide any good cause for late service in their petition they also did not respond at all when the district raised this argument in the district’s answer and memorandum of law.

The District Court further pointed out that the parents did not show that any other SRO decision was inconsistent with the SRO’s ruling in their case. And, in fact, the District Court referred to a number of SRO decisions to the same effect.

The District Court finally pointed out while the parents had now presented a reason for their delay in serving the district (that May 26, 2023, was a holiday), that did not mean that the SRO erred in concluding that the appeal was not timely served.

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The Court also determined that New York State regulations and law did not make the Friday before Memorial Day a legal holiday which would have given the parents until May 30, 2023, to serve their petition on the district.

Even if May 26, 2023, were a legal holiday, the District Court said that this would still not make a difference as the key was not what was presented to the District Court but what information was presented to the SRO. The District Court found that because of the above, the parents did not exhaust their administrative remedies under the IDEA and the Court therefore did not have subject matter jurisdiction over the parents’ claims.

Araujo v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS), 2024 WL 2925190 (S.D.N.Y. June 2024) Issue: exhaustion of administrative remedies Dispute: Whether the parent exhausted her administrative remedies regarding her argument that the IHO’s order relating to Medicaid reimbursement should be appealed.

Conclusion: The Court decided that it would not consider the parent’s arguments because she had not exhausted her administrative remedies.

Key Take Away: The parent could not make arguments in Court that had not been first reviewed by the State Review Officer.

Reasoning: A student with a disability is entitled to transportation services. The parent “entered into a contract [with a private provider] for specialized transportation services for her daughter to be transported to and from (her private school) during the 2021-22 extended school year”.

The parent filed a due process complaint notice that was resolved through a Findings of Fact and Decision (FOFD) issued by an IHO. The IHO ordered that the district pay for the student’s transportation “during the 2021-2022 school year at the lower of either (a) the Medicaid Rate or (b) a fair market rate as demonstrated to the district’s Implementation Unit, based on comparable transportation, utilizing a comparable vehicle with comparable accommodations”.

Neither the parent nor the district appealed the FOFD to the State Review Officer.

The parent later filed an action in the United States District Court for the Southern District of New York seeking reimbursement of the fair market cost of transportation for the ten school days during which the student used transportation. The district disagreed with the parent’s use of the fair market cost and argued a lower rate based on the Medicaid rate from the 2018 Preschool/School Supportive Health Services Program (SSHSP) handbook. .

The District Court agreed with the parent at first and ordered the district to reimburse the parent at the fair market rate. After the district asked the District Court to reconsider, the Court agreed 325

that because the Medicaid rate was lower than the market rate, the district must pay the Medicaid rate to meet the requirements of the IHO’s decision.

The parent disagreed and asked the District Court to reconsider this decision. The parent argued that if they were going to use the Medicaid rate, they must use the rates from the 2023 eMEDNY Medicaid Transportation Manual. The District Court disagreed. It pointed out that the eMEDNY rates specifically applied to transportation to medical appointments and services and not to education-related transportation.

The parent also argued whether the 2018 SSHSP handbook rates applied to the 2021-2022 time period. Since these rates were linked to the SSHSP website and that the parent did not show that any other handbook was in effect during that time period, the District Court decided it could “infer” that the 2018 handbook was in effect during the 2021-2022 time period.

In addition to the previous arguments, the parent also argued that the district could not use the Medicaid rate at all because numerous State Review Officers had rejected the use of the Medicaid reimbursement rate because even though they are less expensive than the fair market rate, they are not actually available. Further, the parent stated that the IHO should not have required the lower of the Medicaid rate or the fair market rate. The District Court said that these two arguments attempt to challenge the merits of the IHO’s decision.

The District Court decided the district used the correct Medicaid rate in determining the reimbursement rate. The District Court refused to hear the parent’s other arguments because the parent did not “exhaust” those arguments by first appealing the FOFD to the State Review Officer.

Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023) Issue: Exhaustion of administrative remedies Dispute: Whether New York State’s COVID-19 related guidance documents required the parent to first return to the CSE before proceeding to IDEA’s administrative remedies to address assertions that COVID-19 had affected a student’s progress, was responsible for a denial of a FAPE to a student or was a basis for a grant of compensatory education for the student.

Conclusion: The New York States COVID-19 related guidance documents did not and could not require the parent to first return to the CSE before proceeding to IDEA’s administrative remedies to address assertions that COVID-19 had affected a student’s progress, was responsible for a denial of a FAPE to a student, or was a basis for a grant of compensatory education for the student.

Key Take Away: A district may not use COVID-19 related New York State guidance documents to require a parent to first return to the CSE before proceeding to IDEA’s administrative remedies to address assertions that COVID-19 had affected the student’s progress, was responsible for a 326

denial of a FAPE to the student, or was a basis for a grant of compensatory education to the student.

Reasoning: The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020 through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended a week on line and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) recommended a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and also provided the student with extended school year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020 the parent filed a due process complaint notice. Among other things, the complaint asserted that the district “had failed to provide the student with a Free Appropriate Public Education (FAPE) since mid-March 2020”. As relief, the parent sought an “extensive educational evaluation” to determine the student’s need for “compensatory services” and “a new CSE meeting to review the same”, and “a determination of appropriate compensatory services due to the denial of FAPE”.

On August 31, 2021, the IHO “found that the student was entitled to an independent educational evaluation (IEE) at public expense. On February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year and (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] claimed that the district’s failure to implement the student’s IEP, [the parent] had failed to properly exhaust her administrative 327

remedies”. She cited COVID-19 specific guidance documents from the United States Department of Education and the New York State Education Department”. Based on that, she claimed that COVID-19 related “concerns regarding the student’s regression and compensatory education as to remote learning must be raised with the CSE in the first instance”. The SRO concluded that “because the IHO’s order alters the procedures that must be followed with regard to compensatory education services arising out of a change in the delivery of instruction during the COID-19 pandemic, it cannot be upheld”. Because of this, she reversed the IHO’s grant of compensatory services.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. Among other things, in its decision, the Court disagreed with the SRO’s holding to reverse the IHO’s grant of compensatory services. In the first place, and citing to the parent’s due process complaint notice, the Court said that the parent had in fact requested the CSE’s review in her statement of relief.

Second and “more fundamentally”, the Court held that “no statute or regulation required [the parent] to seek a CSE meeting before seeking relief through the administrative process for the FAPE denial that she claimed”. Reviewing the terms of the COVID-19 related guidance document relied on by the SRO, the Court pointed out the guidance document “does not purport to impose an exhaustion requirement” but only “reminds the CSEs of their (sic) responsibility to make an individualized determination whether students are entitled to compensatory services in circumstances when FAPE could not be provided” as a result of the COVID-19 pandemic. In addition, the Court said that the COVID-19 related guidance document only provides “various dispute resolution options for a parent who disagrees with a [CSE] decision as to their entitlement to such services”. The Court pointed out that nowhere does the guidance document state that a parent must go first to her child’s CSE to seek compensatory services before pursuing relief via IDEA’s impartial hearing processes or that such processes are foreclosed unless the parent has first gone to the CSE.” Further, the Court pointed out that “had the guidance document forbidden the parent from pursuing IDEA remedies “without returning to the CSE, such an edict would have fit uncomfortably at best with the IDEA’s statutory structure”. Here, the court pointed to Second Circuit caselaw that “those [procedures] that merely add additional steps not contemplated in the scheme of the Act are not enforceable”.

The Court concluded that “[a]s a matter of policy, there may well be some merit in encouraging resort to the CSE to allow New York to correct [COVID-19 related] problems before litigation and to further develop administrative records for judicial review, but there is neither a statutory nor a regulatory charter for the SRO, based on policy analysis, to require this manner of exhaustion as a predicate to a due process complaint”.

Issue: exhaustion

Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024)

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Dispute: Was the parent required to exhausts IDEA’s administrative remedies before filing her suit under the ADA and Section 504.

Conclusion: The parent was not required to exhaust IDEA’s administrative remedies prior to filing her suit under the ADA and Section 504.

Key Take Away: A parent is not required to exhaust IDEA’s administrative remedies where the substance of the parent’s suit is something other than the denial of a FAPE such as a violation of the ADA or of Section 504. Additionally, a parent is able to directly seek money damages under the ADA and Section 504 without being required to exhaust IDEA’s administrative remedies.

Reasoning: The student in this case is eligible for special education because of severe asthma.

“Beginning in the fall of 2020 and continuing throughout the early stages of the COVID-19 pandemic, the New York State Department of Health (NYSDOH) issued a series of interim guidance covering in-person instruction at schools”. Initial guidance on August 26, 2020 set forth that “all students, faculty, staff and other individuals at schools [were] to wear at least an acceptable face covering and permitted exemptions of alternatives for those medically unable to wear masks”. On April 9, 2021, the state modified its initial mandate to include “a mask mandate similar to that in the first interim guidance and permitted exemptions from the school mask mandate for students who are unable to medically tolerate a mask, including students where such mask would impair their physical health or mental health”. For the 2020-21 school year, the NYSDOH allowed a school district to reopen “on the condition that it complied with the mask mandate”. “Accordingly [the district] implemented a reopening plan that required all individuals to wear face masks while on school premises”.

For the 2020-21 school year, the student’s parent requested that the district “secure a medical exemption from the mask mandate …”. The parent’s efforts were unsuccessful. The district ultimately requested that the parent provide a “formal exemption letter from a physician.” The parent then obtained a letter from the student’s treating physician verifying that the student had asthma and setting forth that she “should be allowed to engage in physical activity without a mask in order to prevent wheezing”. The district rejected the parent’s request. Ultimately, the district advised the parent that on the advice of the district’s consulting physician, who had spoken with the student’s physician, it was “denying [the student’s] medical exemption request” based on the conclusion “that the mask was not creating difficulty with [the student’s] asthma”.

The parent subsequently requested of the district that the student attend school remotely, which request was denied. Thereafter, the parent requested that the student “be placed in a classroom with air conditioning and that she be allowed to wear a face shield or mesh mask as opposed to a cloth mask”. The district denied this request. For the 2021-22 school year, the parent sought another exemption for the student with the support of the student’s physician who “certified” that the student “is not medically able to tolerate a mask”. The district denied this request on the recommendation of its consulting physician but did agree to assign the student to a classroom 329

with air conditioning. Thereafter the state issued guidance for the 2021-22 school year which required that all persons and visitors to the school “must wear masks at all times indoors…and permitted exemptions for people with medical or developmental conditions that prevent them from wearing a mask”. On March 2, 2022, NYSDOH lifted the requirement that masks be worn in school and the district “adopted a new, mask optional policy”.

The parent filed a Complaint in Federal District Court on September 7, 2021. The Complaint set forth “constitutional and statutory” violations and sought injunctive relief and damages. The Court initially denied the parent’s motion for a temporary injunction and then for a preliminary injunction. Regarding this, the Court “concluded that rational basis review applied to the mask mandate because the mandate did not impinge on any fundamental right”. On November 3, 2021, the parties reported to the Court that they had reached a settlement agreement that would see the student wearing a “mesh mask” at school. The Court agreed that such “accommodation should remain in effect unless vacated by the Court”.

The parent filed an Amended Complaint on January 20, 2022 alleging a number of causes of action. Among other things, the complaint alleged in Count 5 a violation of the ADA and in Count 6 a violation of Section 504 of the Rehabilitation Act of 1973; both setting forth that the district failed to reasonably accommodate the student’s disability. The parent sought declaratory and injunctive relief as well as damages. In a decision dated March 24, 2023, the Court dismissed the plaintiff’s amended complaint in its entirety. Regarding the parent’s ADA and Section 504 claims, the Court concluded that “due to the lifting of the mask mandate [in March 2022], the Amended Complaint was moot insofar as it seeks declaratory and injunctive relief from that date forward.

The Court further concluded, among other things, that Counts 5 and 6 were limited to injuries suffered prior to November 3, 2021, the date the school district granted the mesh mask accommodation, because the accommodation had been “deemed acceptable by all parties”. The Court additionally held “that because the gravamen of [the parent’s] suit [was] the denial of a Free Appropriate Public Education, the IDEA exhaustion requirement applied to her ADA and Rehabilitation Act claims. This being the case, the Court dismissed the parent’s ADA and Section 504 claims for the period prior to November 3, 2021 on the basis that the parent had failed to exhaust her administrative remedies under the IDEA. The parent now appeals, among other things, the District Court’s denial of the parent’s ADA and Section 504 claims on the basis that the parent had failed to exhaust her administrative remedies under the IDEA. The Court of Appeals stated first that “[c]laims brought under the ADA and the Rehabilitation Act are subject to the exhaustion requirements of the IDEA when they seek relief that would also be available under the IDEA”. Further, the Appeals Court said that “[e]xhaustion is not necessary [, however,] when the gravamen of the parent’s suit is something other than the denial of the IDEA’s core guarantee – what the Act calls a Free Appropriate Public Education (FAPE)”. As indicated above, the District Court held that the gravamen of the parent’s suit was the denial of 330

a FAPE, and that therefore the exhaustion requirement applied to her ADA and Section 504 claims.

The Appeals Court explained that in order to decide “whether a suit complains of a denial of a FAPE, the Court should look to the substance, or gravamen of the [parent’s] complaint”. With respect to that, the Appeals Court looked to Supreme Court precedent in Fry v. Napoleon Cnty.

Sch., 580 U.S. 154 (2017). The Appeals Court referenced here Fry’s two-part test to determine whether a suit is a denial of a FAPE or something else.

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say a public theatre or library?

And second, could an adult at the school – say an employee or visitor – have pressed essentially the same grievance? When the answers to those questions are yes, a complaint that does not expressly allege the violation of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward.

Fry, 580 U.S. at 171.

The Appeals Court concluded that “[h]ere, a thorough reading of [the parent’s] Amended Complaint makes clear that [the parent] is seeking a remedy for [the district’s] alleged failure to accommodate [the student’s] medical needs under the ADA and Section 504. Consistent with Fry, the Appeals Court said that “[j]ust because the alleged conduct arose in a school setting does not automatically transform [the parent’s] objection to that conduct into a claim of a denial of a FAPE”. Hearkening back to Fry’s two-part test referenced above, it is clear, the Appeals Court said, “that [the parent] could have brought this same lawsuit against any public facility she sought to enter that had a mask requirement. “Likewise”, the Appeals Court said, “an adult accessing the school could have pressed the same grievance as the mask mandate applied to any individual (including among others, teacher’s contractors, or visitors) on school premises”. In sum, the Appeals Court said that the student’s “real complaint is one of disability-based discrimination, grounded in the [district’s] refusal to provide a reasonable accommodation”. As a consequence, the parent was not required to exhaust the administrative remedies set forth in the IDEA on the basis that the “substance or gravamen” of her suit was the IDEA. The district also argued to the Appeals Court “that exhaustion was required because the student [was] seeking the type of equitable relief available under the IDEA”. The parent “counters that her claims are not subject to the IDEA requirement because she now seeks only damages, which is not a form of relief available under the IDEA”. The Appeals Court agreed with the parent. It focused on the very recent 2023 Supreme Court decision in Luna Perez v. Sturgis Public Schs., 598 U.S. 142 (2023) and explained that this case “clarified” “that suits seeking damages under another federal law are not subject to the IDEA exhaustion requirements”. Importantly, the Appeals 331

Court, which had previously rejected such an interpretation of the IDEA, upfront advised that its earlier and contrary authority in this area was “no longer good law”.

Simmons v. Mount Vernon City Sch. Dist., et al., 2024 WL 2837625, No. 23-288cv (2d Cir. June 5, 2024) Issue: exhaustion of administrative remedies Dispute: Did the parent exhaust her administrative remedies.

Conclusion: In the circumstances of this case, the exhaustion of remedies doctrine did not apply.

Key Take Away: The Supreme Court has made it possible for a parent to file claims seeking relief that the IDEA does not provide even though the parent has not first gone through the IDEA’s administrative procedures and even though the claim is based on a violation of the IDEA. In this case, the Second Circuit Appeals Court specifically held that the parent could file a claim for money damages under the ADA, Section 503 and Section 1983 for a violation of the IDEA without first going through the IDEA’s administrative procedures. With further respect to exhaustion of administrative remedies, the Second Circuit Appeals Court also held that a parent is not required to exhaust the IDEA’s administrative procedures prior to filing a lawsuit in federal court seeking the enforcement of a settlement agreement reached as a result of a resolution meeting.

Reasoning: On November 9, 2017, the student in this case was suspended for five days “for possessing marijuana at school”. The matter was referred for a “superintendent’s hearing”. Thereafter, the student’s parent requested a manifestation determination review and in due course filed a due process complaint notice on January 3, 2017.

The due process complaint notice “stated that [the student] had been suspended for over 40 days, and that he had not been allowed to return to school pending a superintendent’s hearing”.

The parent asserted that the district’s actions referring the matter to a superintendent’s hearing without a manifestation hearing was biased and prejudiced [the student] from further education.

[The parent] also objected to the disciplinary charges and argued that [the student’s] psychologist’s records and records of a previous manifestation hearing would demonstrate that his condition alters and contributes to his behavior”. “[T]he parties [then] met with an impartial hearing officer (IHO)”. After proceedings, the IHO entered an interim order on February 3, 2017. The interim order provided that the district would hold a superintendent’s hearing on February 10, 2017, unless the parties reached an agreement before that date. The interim order further provided that if [the student] were found guilty at that hearing, the district would hold a manifestation hearing…” The parent “alleges that [the district] did not hold a superintendent’s hearing where [the parent] was a participant”.

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On March 10, 2017, the district and the parent entered into a settlement agreement “resulting from a resolution session” to address both the disciplinary charges and the due process complaint notice. The parent alleges that the district “did not comply with the settlement agreement, and that the district continued to violate her rights”.

On November 8, 2019, the parent commenced an action in District Court. Among other things, the action asserted violations of the IDEA, and set forth claims for damages under the ADA, Section 504, and Section 1983. Thereafter, the District Court dismissed the action for failure to exhaust administrative remedies. “Specifically, the District Court held that because the gravamen of the complaint was the denial of a free appropriate public education (FAPE), [the parent’s] failure to exhaust the IDEA’s administrative remedies deprived the court of jurisdiction”. The District Court, however, provided the parent with the opportunity to amend the complaint but “to only address the exhaustion issue”. Subsequent to the amendment, the defendant filed another motion to dismiss. The Court dismissed the action and found that the parent “had not plausibly alleged that exhaustion would have been futile or should otherwise be excused”.

The parents appealed to the Second Circuit Court of Appeals. The Court of Appeals reversed the District Court. With respect to the dismissal of the parent’s ADA, Section 504, and Section 1983 damages claims, it first pointed out that the District Court had correctly determined the motion to dismiss based on the law at the time of the motion to dismiss and determination. More specifically, at the time of the District Court’s determination, the law “require[ed] exhaustion of claims premised on the denial of a FAPE even where such claims seek a remedy – such as compensatory damages – that the IDEA does not provide”. However, the Appeals Court also pointed out that during the course of the appeal, the Supreme Court “adopted a narrower view of the IDEA exhaustion requirement”.58 In particular, the Supreme Court decided that “claims seeking a form of relief that the IDEA does not provide, including compensatory and punitive damages, need not be exhausted, even if such claims seek to redress the denial of a FAPE”. Based on this, the Appeals Court held that the Supreme Court’s new interpretation of the law “had abrogated the District Court’s basis for dismissing [the parent’s] ADA, Section 504, and 1983 claims for damages. The defendants argued in the alternative that the parent’s complaint had failed to state a claim with respect to the damages claims. The Appeals Court “decline[d] to evaluate this argument as [the parent] had not had an opportunity to amend her complaint to correct any deficiencies in the pleading”. Based on this, the Appeals Court “vacate[d] the dismissal of [the parent’s] ADA, Section 504, and Section 1983 claims for damages and remand[ed] for further proceedings”.

With respect to the parent’s IDEA claim, the Appeals Court decided that the parent “was not required to exhaust her claim for [] relief against the district for breach of the settlement agreement”. The Appeals Court first pointed out that “Congress has expressly provided for enforcement of IDEA settlement agreements in federal district courts when the agreement at 58

See Luna Perez v. Sturgis Public Schools, 598 U.S. 142 (2023).

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issue was entered into at a resolution session” provided by the IDEA. Upon review of the parent’s pleading, the Appeals Court found that the parent’s asserted IDEA claim arose both from the breach of a settlement agreement and as a result of a resolution session set out in the IDEA. As a consequence, the Appeals Court reversed the District Court’s determination that the parent’s IDEA claim should barred for failure to exhaust administrative remedies.

L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) Dispute: Whether the exhaustion of administrative remedies is relevant in a case involving pendency Conclusion: Exhaustion of administrative remedies does not apply in circumstances where pendency is at issue.

Basis of the Court’s Decision: The student is classified as a student with an emotional disturbance and has received special education services.

The district’s CSE met on June 15, 2023. At that time, all parties agreed that the student’s appropriate placement was a 12-month placement in a residential non-public school. However, the CSE was unable to find such a placement for the child. It therefore recommended that the student attend a public high school that served both students with disabilities and students without disabilities and which was not a residential school. The parent’s disagreed with this placement and unilaterally placed the student in a non-pubic residential school.

The parents filed a due process complaint notice asserting that the district had failed to find an appropriate placement for the student. Under the circumstances, the parents asserted that the principles of pendency placement and injunctive relief under the IDEA assured the student a right to attend the private school he was attending on a monthly basis during the pendency of the due process complaint process or until the district provided the student with a “suitable” residential placement as set forth in his IEP. Pending “before the Court [was] the [p]laintiffs [request for injunctive relief] to order the district to fund [the student’s] placement at [the private school] on a monthly basis during the pendency of the due process proceedings or until [the district] provides [the student] with another suitable residential placement as specified in [the student’s] IEP”.

The parents assert that the student had a right to continue to attend his private residential placement on a monthly basis as a pendency placement, the district claimed that the claim was barred by the doctrine of the failure to exhaust administrative remedies and cited to Second Circuit caselaw at Ventura de Paulino, 959 F.3d 519, 530 (2d Cir 2020).

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The Court disagreed and explained that “when an action alleges a violation of the stay-put provision, such action falls within one, if not more, of the enumerated exceptions to the IDEA’s exhaustion requirement. See de Paulino, 959 F.3d at 531. The Court therefore rejected the district’s argument.

Luna Perez v. Sturgis Pub. Sch., 21-887, 2023 WL 2575928 (S.Ct. Mar. 21, 2023) Dispute: Whether a parent/student must exhaust administrative remedies under the IDEA before bringing a suit for compensatory damages under the ADA. Conclusion: A student/parent is not required to exhaust administrative remedies under the IDEA before it can commence a suit for compensatory damages under the ADA. Basis of the Supreme Court’s Decision: In this case, a deaf student, who was a student with a disability under the IDEA, attended district schools from the time he was 9 through the time he was 20. Because of his deafness, the student needed aides “to translate instruction into sign language”. Allegedly and “for years,” the district “assigned aides who were either unqualified … or absent from the classroom for hours on end”.

During the time that the student was in district schools, it allegedly had also given the student “inflated grades” and passed him forward from grade to grade. Regarding this, when it came time for the student to graduate, the district advised that it would not do so.

The student filed an administrative complaint with the state department of education “alleging, among other things, that [the district] failed to provide him with a [FAPE] as required by the [IDEA].” The complaint was settled and the district agreed to provide the student with “forwardlooking equitable relief … including additional schooling”. The student did not file an IDEA administrative complaint, which would have involved a due process complaint notice, an impartial hearing, and a possible appeal to the state administrative agency.

Subsequent to the settlement, the student filed a complaint in federal court under the ADA seeking “backward-looking relief in the form of compensatory damages”. In response, the district asserted that the student had failed to exhaust his administrative remedies pursuant to the IDEA under 20 U.S.C. 1415(l) and moved to dismiss the claim. The district court agreed, dismissing the case. The court of appeals likewise agreed and affirmed the dismissal. Because of a dispute among the circuits, the Supreme Court accepted certiorari.

In issuing its decision, the Supreme Court initially wrote that “[w]hether Section 1415(l) [of the IDEA] bars lawsuits like [the one in question] holds consequences not just for [the student] but for a great many children with disabilities and their parents”.

Specifically, regarding exhaustion, the Court pointed out that Section 1415(l) of the IDEA “contains two salient features”. First, it sets forth a “general rule” that “[n]othing in [t]he IDEA shall be construed to restrict the ability of individuals to seek remedies under the ADA or other 335

federal laws protecting the rights of children with disabilities”. “Second, the statute offers a qualification, prohibiting certain suits with this language …” “Except that before the filing of a civil action under such other federal laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted. In turn, subsections (f) and (g) provide affected children and their parents with the right to a due process hearing before a local or state administrative official … followed by an appeal to the state educational agency”.

The parties would interpret these provisions differently. The student, according to the Court, “reads the statute to require a plaintiff to exhaust the administrative processes found in subsections (f) and (g) only to the extent he pursues a suit under another federal law for remedies [the] IDEA also provides”. Consistent with this, the Court pointed out that the student argued here that nothing “forecloses his current claim because his ADA complaint seeks only compensatory damages, a remedy that everyone before us agrees [the] IDEA cannot supply.”

The Court said that the “limiting language” under the IDEA “does not apply to all suits seeking relief that other federal laws provide. The statute’s administrative exhaustion requirement applies only to suits that seek relief … also available under [the] IDEA”. The Court went on to say that this “condition simply is not met in situations like ours, where a plaintiff brings a suit under another federal law for compensatory damages – a form of relief everyone agrees [the] IDEA does not provide”.

The Court held that in the circumstances of this case, where the student’s ADA claim requested compensatory damages – a form of relief that was not provided for by the IDEA, it was not required to exhaust the administrative remedies under the IDEA before commencing that claim.

The Court ended by advising that the issue was raised as to whether the ADA may provide the remedy of compensatory damages in the first instance. Regarding this, the Court said that it was not deciding that question at this time.

Z.Q. et al. individually and on behalf of themselves and all other similarly situated v. New York City Dep’t of Educ., No. 22-939-cv, 2023 WL 1486387 (2d Cir. Feb. 3, 2023) Dispute: Whether the plaintiffs have exhausted their administrative remedies with respect to their claim that appropriate compensatory services should be provided to address the education of students with disabilities during the period of remote learning caused by the COVID-19 pandemic.

Conclusion: The Second Circuit determined that in light of the “sparse record” before it, it was inappropriate in relevant part to grant the defendants’ motion to dismiss on the basis of exhaustion of administrative remedies and reversed the district court’s decision to do so; and remanded the matter to that court for further proceedings.

Basis of the Second Circuit’s Decision: 336

A group of parents commenced a class action lawsuit alleging that the New York City and New York State failed to provide a FAPE to thousands of students with disabilities in New York City during the period of remote learning caused by the COVID-19 pandemic. The parents requested that the district court put in place a specific mechanism which was separate and distinct from the administrative hearings procedure to evaluate the need for compensatory services for special education students who, because of remote learning, fell behind during the COVID-19 pandemic.

The district court “dismissed the plaintiffs’ federal claims for failure to exhaust available administrative remedies because they did not seek compensatory services through [the New York City Department of Education’s] complaint resolution process before filing [the] action”.

The parents argued “that it would have been futile” to exhaust their administrative remedies and that therefore they should be excused for not doing so.

The Appeals Court pointed out that “IDEA’s exhaustion requirement will be excused in those circumstances where exhaustion would be futile”. To “demonstrate futility”, the Appeals Court said that a plaintiff “must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process”. The Appeals Court went on to say that, among other things, futility “may arise where the complaint alleges systemic violations that the administrative review process had no power to correct.”

With respect “to the extent” that the plaintiffs were arguing that “exhaustion would be futile merely because the administrative process cannot order the process-oriented remedy that [the plaintiffs] seek, …” the Appeals Court said this was “unpersuasive”.

The district court concluded that plaintiffs did not allege any systemic violation and dismissed the claims. The Appeals Court disagreed saying that it has “recognized that exhaustion may be futile if administrative bodies persistently fail to render expeditious decisions as to due process complaints within the required timeframe”. It said that the complaint here in relevant part “sets forth precisely this allegation of systemic delay”. It pointed out that the plaintiffs asserted that the New York City Department of Education “systemically fails to resolve due process complaints within the required [75-day] time frame and cannot adequately handle the volume of plaintiffs’ complaints”. The Appeals Court pointed out that the plaintiffs had also “allege[d] that at the start of the COVID-19 pandemic, the [New York City Department of Education] faced more than 10,000 open complaints, nearly 70% of which had blown past the legal deadline for resolution, forcing families to wait months or even years before receiving the special education services they need”.

Defendants “argue[d] that exhaustion was not futile because the New York City Department of Education had put into place an individualized and IEP-based “new program for provision of compensatory education” which “offers the exact relief that plaintiffs seek and allows families to obtain compensatory services outside of the administrative hearing process”. The defendants 337

argue that “plaintiffs’ claims are moot because the [New York City Department of Education’s] program offers plaintiffs the relief they seek”.

Upon review of the papers, the Appeals Court said that the plaintiffs raised numerous facts relevant to the ability of the “new program” to achieve the plaintiff’s relief as well as to address the large-scale delay in the provision of compensatory services.

The Appeals Court determined that on the “sparse record” before it, and in the context of a motion to dismiss, it could not “conclude that New York City’s 2022-23 new program moots plaintiff’s claims or undermines the sufficiency of their futility allegations.

The Appeals Court concluded that the defendants could raise their arguments in the district court “with further development of the record” and that the plaintiffs could amend their complaint, if necessary, to address the defendants’ allegations that the “new program” is effective in addressing the need for compensatory services as a result of the remote services resulting from the COVID-19 pandemic.

The Court vacated the judgement of the district court and remanded the matter to it.

P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop.

Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022) Dispute: Whether the parents had exhausted their administrative remedies.

Conclusion: The Court concluded that in all but one possible period of time, the futility exception to the exhaustion of administrative remedies doctrine failed to give life to the parents’ claims.

Basis of the Court’s Decision: “It is well settled that prior to bringing a suit in the federal court under the IDEA, plaintiffs must exhaust all available administrative procedures”. However, “the exhaustion requirement does not apply in situations in which exhaustion would be futile … which includes circumstances in which plaintiffs claim that defendants failed to implement services that were specified or otherwise clearly stated in an IEP”.

In this case, it was undisputed that the parents did not exhaust their administrative remedies with respect to the failure of the district to provide for group counseling services that were a part of the student’s IEP. However, and relative to this, the Court said that in a previous decision, the “plaintiffs had adequately alleged futility in [the third amended complaint] by alleging that group counseling was included in [the student’s] IEP for the entirety of the 2013-14 school year, including the [extended school year] and that such services not provided by [the defendant]”.

Notwithstanding such earlier allegations, the Court found that since the time of its previous decision, it had been determined “that group counseling was not included in [the student’s] IEP for the 2013-14 school year after November 21, 2013 or his IEP for the 2014 [extended school year]”. This being the case, the Court held that the futility exception did not apply to those specific periods of time and that the Court lacked subject matter jurisdiction regarding those claims.

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With regard to the period of time between the beginning of the 2013 school year through November 21, 2013 the Court described the record as “foggy” with respect to whether the student received group counseling provided for in his IEP during that period of time. In light of the fact that the district had filed a motion for summary judgment on this issue and that therefore the relevant facts would be construed in the light most favorable to the parents, the Court determined that there was a “genuine issue of material fact as to whether [the student] received group counseling for this entire time period and thus, the futility exception applies to the [parents’] claim as to this time period”. That being the case, the Court held that it had subject matter jurisdiction to consider that question.

Schneider v. Mahopac Cent. Sch. Dist, et al., 21-2201, 2022 WL 1316211 (2d Circuit May 3, 2022) Dispute: Whether the parent exhausted his administrative remedies.

Conclusion: The parent failed to exhaust his administrative remedies.

Basis of the Court’s Decision: The district court granted the school’s motion to dismiss, finding, among other things, that it lacked subject matter jurisdiction over the parent’s IDEA and retaliation claims because he had not exhausted his administrative remedies under the IDEA. On appeal, among other things, the parent did not challenge the dismissal of “his claim that expressly alleges an IDEA violation” and the Circuit Court therefore did not consider this claim.

The parent’s argument properly before the court on appeal “is that the district court erred in determining that he was required to exhaust his First Amendment and Rehabilitation Act retaliation claims using the IDEA’s procedures before filing suit in federal court”. These exhaustion procedures include, among other things, the filing of a due process complaint, the conducting of an impartial due process hearing and decision, and review and decision by a State Review Officer.

The Circuit Court pointed out that “[i]n addition to applying to IDEA claims, these exhaustion requirements apply to claims brought under the Americans with Disabilities Act, the Rehabilitation Act and other federal laws protecting the rights of children with disabilities to the extent that those claims seek relief that is also available under the IDEA”. See 20 USC 1415(l).

Following up on this, the Court said that a parent’s “failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction” In this case, the parent “does not claim that it followed the IDEA’s procedures with respect to his First Amendment and Rehabilitation Act retaliation claims”. The parent instead “argues that the claims do not seek relief that is available under the IDEA, and accordingly, he was not required to exhaust them before bringing suit”.

The Supreme Court in Fry v. Napoleon Community Schools, 137 S.Ct. 743(2017) “clarified the framework for determining whether a claim that is not expressly brought under the IDEA is nonetheless subject to the IDEA’s exhaustion requirements. The Court explained that Section 339

1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape Section 1415(l) merely by bringing her suit under a statue other than IDEA.” Fry said that under such standard, “we must examine whether a plaintiff’s complaint – the principal instrument by which she describes her case – seeks relief for the denial of an appropriate education scrutinizing the complaint’s substance not surface”.

Upon review, the Court held that in the instant case, the parent’s complaint “seeks relief that is available under the IDEA, and therefore that [the parent’s] First Amendment and Rehabilitation Act retaliation claims were subject to the exhaustion requirement.

The Circuit Court said that “[t]his analysis is confirmed by considering the two hypothetical questions that the Supreme Court posed in Fry: (1) Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say a public theatre or library?; and (2) Could an adult at the school… have pressed essentially the same grievance?” Regarding this, “[w]hen the answer to these questions is no, the Court instructed that the complaint probably does concern a FAPE, even if it does not explicitly say so”.

In this case, the Circuit Court said that it agreed with the district court that the answers to the Fry hypotheticals was “no”. More particularly, “[b]ecause [the parent’s] retaliation claims seek relief for changes to the student’s IEP--an accommodation that is available only to school children -- he would be unable to bring the same claim against a different public facility”. Moreover, “an adult at the school could not have pressed essentially the same grievance” as the focus of an IDEA claim is to protect school children and not adults.

With the above in mind, the Circuit Court concluded that the parent “was required to exhaust administrative remedies under the IDEA before bringing his First Amendment and Rehabilitation Act retaliation claims in federal court,” and because he did not, “the district court correctly dismissed the parent’s retaliation claims for lack of [subject matter] jurisdiction”.

R.R. v. Greenwich Bd. of Educ., No.3:21-CV-00873 (JCH), 2022 WL 1443979, (D. Conn. May 6, 2022) Dispute: Did the parents exhaust their administrative remedies.

Conclusion: The Court determined that the parents did not exhaust their administrative remedies and dismissed the second count of their complaint.

Basis of the Court’s Decision: The parents’ lawsuit included two counts. One was a count under the IDEA; the second, a count under the ADA. In reviewing the matter, the Court pointed to the Supreme Court’s opinion in Fry v. Napoleon Cmty. Sch., 137 S.Ct.743 (2017) regarding the scope of the exhaustion requirement set forth at 20 USC 1415(l). Key to that requirement is that “if plaintiffs bring an ADA claim that seeks relief that is also available under the IDEA, they are

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required to first assert that ADA claim through the IDEA’s administrative processes before bringing an action in federal court”.59 Regarding whether a statute seeks relief that is available under the IDEA, the Court pointed to Fry for the conclusion that the relief sought must be for the denial of a FAPE because that is the only “relief” that the IDEA makes “available”. Moving forward from there, the Count pointed to relevant language in Fry that “in determining whether a suit indeed seeks relief for such a denial, “a court should look to the substance or gravamen, of the plaintiff’s complaint” and that “[d]oing so requires an examination of the claims that should consider substance not surface.” and that “[t]he use (or non-use) of particular labels and terms is not what matters”.

The Court then recited in detail the importance of Fry’s “hypothetical questions”: One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say a public theatre or library? And second, could an adult at the school – say an employee or visitor – have pressed essentially the same grievance? When the answers to those questions is yes, a complaint that does not expressly allege the denial of FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Finally, and also regarding Fry, the Court pointed to the Supreme Court’s statement that “a further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings”. In particular here, and again citing to Fry, the Court said that “prior pursuit of the IDEA’s administrative remedies will often – although not always -- provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE. With regard to this case, the Court concluded that it was “quite clear” that the gravamen of the plaintiff’s Complaint was a denial of a FAPE. The Court pointed out that the IDEA claim was “expressly incorporated” into the ADA claim. Additionally, the additional facts contained in the ADA claim were “sparse and mostly duplicative of the allegations made [under Count 1] in the Complaint”. The Court also looked to the plaintiff’s Memorandum where they described their ADA claim. Looking at that description, the Court said that this set forth a FAPE claim. “Indeed” the Court said that most of count two (the ADA claim) “is entirely devoid of any factual allegations at all, consisting solely of legal conclusions. The Court said that “in this way, the substance or The relevant language in Section 1415(l)’s exhaustion requirement is not limited to a claim brought under the ADA but is generalizable as it includes claims brought under the constitution, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.

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gravamen of plaintiff’s Count 2 ADA claim is identical to its Count 1 denial of a FAPE claim under IDEA: it seeks relief for the same injury, but under the guise of the ADA rather than the IDEA”.

Regarding Fry’s hypothetical questions, the court said that the answers to these two questions was “no” and in particular, that the parents could not have brought the same ADA claim against a public facility that was not a school. Nor could an adult at the school have brought the same claim.

Regarding the history of the proceeding, the Court said that this also provides “strong evidence here that the substance of the parents’ ADA claim concerns the denial of a FAPE, In this regard, the Court pointed to the fact that the plaintiffs “fully availed themselves of the administrative processes available under the IDEA for their IDEA claim” “Yet on appeal of the IHO’s decision finding that there was no denial of a FAPE, they have simply appended an ADA claim to their Complaint without substantially adding to the factual allegations in that Count.

Finally, the Court cited to Circuit Court cases in the Fifth and Eleventh Circuits and lower court cases in the Second Circuit that concerned situations where a party’s IDEA claim also included a claim concerning another statute protecting the rights of students with disabilities.60 The Court reported that in all such cases, the non-IDEA claim was dismissed for failure to exhaust administrative remedies.

Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017) Dispute: Whether the parents have exhausted their administrative remedies.

Conclusion: The Supreme Court concluded that further analysis by the Court of Appeals was required in order to determine whether the parents had exhausted their administrative remedies.

Basis of the Court’s Decision: In determining whether the parents had exhausted their administrative remedies the Court looked to Section 20 U.S.C. 1415(l) of the IDEA which reads as follows: Nothing in the [IDEA] should be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], Title V of the Rehabilitation Act [including Section 504] or other Federal laws protecting the rights of children with disabilities except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the IDEAs [administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

60 The Court’s decision advised that the Second Circuit had not addressed this question. Regarding this, the instant case was issued just three days after the Second Circuit’s decision in Schneider v. Mahopac Central School District, 21-2201, 2022 WL 1316211 (Second Cir. May 3, 2022,) a case which dismissed a plaintiff’s Section 504 and First Amendment retaliation claims in a complaint which also included an IDEA claim because the plaintiff there did not exhaust administrative remedies.

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In this case, the civil action at issue concerned whether the student’s trained service dog could accompany the student at school. The school initially determined that it could not. Thereafter, the student’s parents filed a complaint with the Department of Education Office for Civil Rights (OCR) asserting that the school had violated the student’s rights under both Title II of the ADA and Section 504 of the Rehabilitation Act. Upon review, the OCR determined that the district’s conduct did violate the student’s rights under these two anti-discrimination statutes.

The Court said that Section 1415(l) “requires that a [parent] exhaust the IDEA’s procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit seeks relief that is also available under the IDEA”. The Court held that “to meet that statutory standard, a suit must seek relief for the denial of a FAPE, because that is the only relief the IDEA makes available”. The Court also held that “in determining whether a suit indeed seeks relief for such a denial, a court should look to the substance or gravamen of the [parent’s] complaint”. “One clue whether the gravamen of a complaint against a school concerns the denial of a FAPE or instead addresses disability-based discrimination” looks to the answers to two “hypothetical questions”. “First, could the [parent] have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say, a public theater or library? And second, could an adult at the school such as an employee or visitor have pressed essentially the same grievance”. The Court advised that when the answer to these questions was “yes, a complaint that does not expressly allege a denial of a FAPE is also unlikely to be truly about a FAPE’ and thus if so, exhaustion of the IDEA’s administrative procedures is not required.

But when the answer is “no” then the complaint probably does concern a FAPE and if so, exhaustion of the IDEA’s administrative procedures is required.61 The Court also stated that “[a] further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings” and that “[i]n particular, a court may consider that the [parent] has previously invoked the IDEA’s formal procedures to handle the dispute – thus starting to exhaust the Act’s remedies before switching midstream. The Court advised that The Court gave two “contrasting examples” of this. First a wheelchair-bound student sues the school for a violation of the ADA without mentioning the denial of a FAPE because the building lacks access to ramps. Here, an argument could be made that the matter has “educational consequences, and a different lawsuit might have alleged that it violates the IDEA”. “After all, if the child cannot get inside the school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real-world) success”. So, what is the gravamen of this suit? With respect to the answers to the two questions, the Court pointed out that the student “could file the same basic complaint if a municipal library or theater had no ramps. And similarly, an employee or visitor could bring a mostly identical claim against the school”. Here, an answer of yes to these two questions suggests that the “essence [of the claim] is equality of access to public facilities, not adequacy of special education”. And, if so, there would be no requirement that before that claim could be heard, IDEAs administrative procedures needed to be exhausted. On the other hand, what if a student with a learning disability sues the school “for failing to provide remedial tutoring in mathematics”. What is the gravamen here? With respect to this, the first of the two questions is “can anyone imagine the student making the same claim against a public theater or library. With respect to the second question, can it be imagined that an adult visitor or employee would complain about this. This time, the answers to the two questions are no. Therefore, this suggests that the essence of the claim is one under IDEA and if so, the issue cannot be raised in court until the administrative procedures under IDEA have been exhausted.

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“[a] [parent’s] initial choice to pursue that process may suggest [that the parent] is indeed seeking relief for the denial of a FAPE – with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy”. But, the Court said “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term” and that in such a case, the student would be required to exhaust the IDEA’s administrative procedures.

The Supreme Court reviewed the treatment of the case by the appeals court. It concluded that “[t]he Court of Appeals did not undertake” the required analysis. The Supreme Court said instead, that the Circuit Court only considered “whether the [student’s] injuries were, broadly speaking, educational in nature”. The Supreme Court looked at the complaint and saw that nothing about it suggested that it concerned anything other than disability-based discrimination.

And further, in using the “two questions” analysis “nothing in the nature of the [parents’] suit suggested any implicit focus on the adequacy of the student’s education”. However, and importantly with respect to the balance of the analysis, the Supreme Court found that the administrative record was “cloudy” regarding the extent to which the IDEA’s administrative proceedings had been utilized prior to the suit being filed. And the Supreme Court indicated that this could make all the difference in determining whether the gravamen of the parents’ claim concerned the denial or a FAPE, which if it did, required the parents to exhaust IDEA’s administrative procedures prior to the bringing of their lawsuit.

With this in mind, the Court therefore remanded the matter back to the Court of Appeals to “establish whether (or to what extent) the [parents] invoked the IDEA’s dispute resolution process before bringing [the] suit. And “if the [parents] started down that road the Court should decide whether their actions reveal that the gravamen of their complaint was indeed the denial of a FAPE, thus necessitating further exhaustion”.

Schneider v Mahopac Cent. Sch. Dist. et al, No. 20-CV-709 (CS), 2021 WL 3887913 (S.D.N.Y. Aug. 31, 2021) Dispute: Whether the parent has exhausted IDEA’s administrative procedures?

Conclusion: The Court concluded that all but one 62 of the parent’s claims should be dismissed for failure to exhaust IDEA’s administrative procedures.

Basis of the Court’s Decision: According to the Court, the parent brought claims for the following: (1) retaliation in violation of the First Amendment under 42 U.S.C. 1983 and in violation of Section 504 of the Rehabilitation Act of 1973; (2) violations of what the parent called the “stay put” provision of the IDEA and (3) a violation of 18 U.S.C. 241. The district defendants (hereinafter That claim was brought pursuant to a violation of 18 U.S.C. 241. The Court advised that this is a criminal statute which cannot be prosecuted by a private citizen. The Court also found that this claim, had been abandoned. That all being said, the Court granted the district’s motion to dismiss the claim on the basis that it failed to state a claim upon which relief can be granted.

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referenced as “district) assert that all of the parent’s claim, “at their core” seek relief for the denial of a FAPE and “therefore all are subject to the IDEA’s administrative exhaustion requirement.

In evaluating this, the Court looked to the Supreme Court decision in Fry v. Napoleon Community Schools, 173 S. Ct 7453 (2017)63 for guidance as to how to proceed. In that case, the Supreme Court considered how to determine if a claim of discrimination under Section 504 and/or the ADA satisfies the IDEA’s exhaustion requirement. The Court first identified the relevant statutory provision as 20 U.S.C. 1415(l) of the IDEA. According to Fry this provision requires that a parent exhaust the IDEA’s administrative procedure before filing an action under the Americans with Disabilities Act (ADA), the Rehabilitation Act, or similar laws when (but only when) the suit seeks relief that is also available under the IDEA”. Fry held “that to meet that statutory standard a suit must seek relief for the denial of a FAPE, because that is the only relief the IDEA makes available”.

Fry also held that “in determining whether a suit seeks relief for such a denial, a court should look to the substance or gravamen of the [parent’s] complaint”. Fry set forth a framework under which it could be determined whether the gravamen of a complaint against a school district concerns the denial of a FAPE or instead addresses disability-based discrimination. In the first place, the Court looked to the answers to two “hypothetical questions”. “First, could the [parent] have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say a public theater or library? And second, could an adult at the school such as an employee or visitor have pressed essentially the same grievance”. When the answers to these two questions is “yes” a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about a FAPE and thus if so, exhaustion of the IDEA’s administrative procedures is not required. But when the answer is “no” then the complaint probably does concern a FAPE and if so, exhaustion of the IDEA’s administrative procedures is required. Fry also set forth that “[a] further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings”.

With respect to the parent’s retaliation claims, the Court wrote that these “are essentially based on the same facts as the [parent’s] IDEA claims” and concern “changes made to [the student’s] aide assignment, rules relating to communication through teachers rather than aides, a January 2020 delay in the student’s mother being allowed into the school, and the implementation of a seizure log”. The parent claims that these actions were taken in retaliation for his exercise of rights under the First Amendment and Section 504. The Court concluded that “none of these accommodations would apply to a situation at a public facility other than a school such as a public theater or library” and that “[s]imilarly all of these accommodations would only apply to a child/student, rather than to an adult visitor or staff member at a school” and that therefore exhaustion under Fry was required.

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A summary of the Fry case can also be found in the Special Education Digest.

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In deciding whether the IDEA’s administrative procedures need to be exhausted relative to the parent’s retaliation claims, the Court also pointed to prior-Fry decisions of Courts of Appeals in the First, Third, and Eleventh Circuits to this effect. The Court further pointed to post-Fry decisions from the Third and Fourth circuits that found that retaliation claims needed to exhaust the IDEA’s procedures. Finally, the Court cited to a number of post-Fry district court decisions within the Second Circuit that required retaliation claims to have pursued administrative remedies.

Based on all of this, the Court found that the parent’s retaliation claims were subject to the IDEA’s exhaustion requirement, that the parent had not exhausted his administrative procedures under IDEA with respect to these claims and that therefore the district’s motion to dismiss these claims was granted.

With respect to plaintiff’s IDEA claim, the parent’s complaint asserted that the district had “abolished some of [the student’s] IEP accommodations without notice” According to the Court, the parent was apparently referring to the number of unilateral changes made to the student’s aide assignment, changes relating to communication through teachers rather than aides, possibly the delay in the student’s mother being allowed into school in January 2020, and the implementation of a seizure log. The Court held that the changes to the parent’s accommodations were “plainly brought under the IDEA and were based on the denial of a FAPE” and that the parent “specifically challenges changes to [the student’s] IEP” and the parent “cites to a provision of the IDEA requiring various procedural protections before changes to an IEP are made”. Here too, the Court’s decision references the Fry analysis as it related to the gravamen of the parent’s complaint. With respect to this, the Court concluded that, as indicated above, “the defendants [were] captured by Fry’s two-question test” and that “the history of the proceedings” supported a finding that the gravamen of the suit was the denial of a FAPE.64 The Court concluded that the plaintiff was required to exhaust his administrative remedies under the IDEA before bringing his IDEA claim, and that since the parent did not allege facts indicating exhaustion, the district’s motion to dismiss was granted relative to these claims.

B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) Dispute: Whether the parents had exhausted their administrative remedies.

Conclusion: The Court held that the parents had failed to exhaust their administrative remedies and that this precluded the Court from considering the relevant claims.

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While it appears that the plaintiff did not engage in any of the IDEA’s formal administrative procedures (see Schneider v Mahopac Cent. Sch. Dist. et al, No. 20-CV-709 (CS), 2021 WL 3887913, at *4 (S.D.N.Y. Aug. 31, 2021), the fact that the parent “specifically challenges changes to [the student’s] IEP” does nothing to show that the parent did or did not engage with the IDEA’s procedural remedies.

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Basis of the SRO’s Decision: The parents assert that the district “violated their right to participate” at the July 29, 2014 IEP Team meeting “by refusing to reconvene or otherwise consider information [the parents] provided after the meeting, principally a letter from [the student’s] psychologist”. Further, the parents “challenge the [d]istrict’s administrative due process system, contending that hearing officers, including the hearing officer in this case, lack the independence required by statute” in that “although officially denominated as independent contractors” the terms of [independent hearing officers’] contracts with [the state administrative agency] render them employees, thereby depriving them of the objectivity and independence required by the IDEA”.

The Court found that it could not consider both of these issues as the parents had not presented either of them to the independent hearing officer at the due process hearing.

Ventura de Paulino v New York City Dep’t of Educ. 959 F.3d 519 (2d Cir. 2020) Dispute: The district claims that the parents should have exhausted their administrative remedies before an IHO and/or an SRO in a case involving pendency placement. The parents assert that the exhaustion doctrine does not apply in such a case.

Conclusion: The Second Circuit held that the exhaustion of administrative remedies doctrine did not preclude a Court from addressing an allegation of pendency before it was heard by an IHO and/or an SRO. Basis of the Court’s Decision: The Second Circuit pointed out that while the IDEA requires that available administrative remedies be exhausted before a lawsuit is filed in federal court, there are certain exceptions to that general rule; one of which involve the allegation of a violation of the “stay put” or pendency placement provision of the IDEA. G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----Fed.Appx. --(2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) Dispute: Whether plaintiffs exhausted their administrative remedies.

Conclusion: The Circuit Court found that the District Court did not err when it concluded that the plaintiffs did not exhaust their administrative remedies.

Basis of the Court’s Decision: It was not disputed that certain of plaintiffs’ claims were “not raised” in any due process complaint notice or before any IHO and, further, that as a general rule, the plaintiffs must exhaust their administrative remedies before filing suit. Plaintiffs argued, however, that in this case, the doctrine of “futility” should allow their claims to be considered.

The Circuit Court ruled that notwithstanding this doctrine it was appropriate to require the plaintiffs to exhaust their administrative remedies. This was because the plaintiffs had not developed a record with respect to the particular claims at issue and also had not allowed individuals with expertise in education to make determinations relative to these claims “in the first instance”. The court further pointed out that plaintiffs had not shown that adequate

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remedies were not “reasonably available” or that the wrongs plaintiffs complained of “could/would not” have been corrected by the administrative process.

EXTENDED SCHOOL YEAR KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) Dispute: Was the district required to provide the student with extended school year services?

Conclusion: The Appeals Court agreed with the District Court and the SRO that the district was not required to provide the student with extended school year services during the summer of 2016.

Basis of the Court’s Decision: The Appeals Court set forth that “(t)he IDEA’s implementing regulations require school districts to ensure that extended school year services are available as necessary to provide FAPE”. The Appeals Court concluded that the District Court correctly found that the district’s denial of the parent’s request to provide the student with services during the summer of 2016 did not deprive the student of a FAPE and that the record “amply supports the SRO’s conclusion that (the student) was not entitled to summer services”. The Court pointed to the SRO’s conclusion that the student “did not lose any credits during her hospitalization in the spring and summer of 2015 and remained on track to graduate on time following her return to school.in the fall”. Nor did the student require “an inordinate period of review at the beginning of the school year to maintain academic progress” and instead made substantial academic progress without such. Additionally, the student did not suffer any academic or emotional “regression” during the winter breaks. The Appeals Court concluded that the SRO thus “adequately addressed any concerns that (the student) might regress without a structured and supportive environment during the summer months”. The Appeals Court concluded that the SRO’s opinion was “thorough and careful” and therefore “merits our deference”.

KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. February 26, 2021) Dispute: The parent asserts that the student was eligible to receive extended school year services. The district disagrees.

Conclusion: The Appeals Court determined that the SRO and District Court appropriately held that the student was not required to be provided with extended school year services in order to receive a FAPE. Basis of the Court’s Decision: The Appeals Court agreed with the District Court and the SRO that the student did not need to be placed in a summer program during the 2016-17 school year in order to receive a FAPE. Broadly speaking, the Appeals Court held that the relevant consideration was whether extended school year services were necessary in order for the student to receive a 348

FAPE. In this case, the Appeals Court held that the record “amply supports the SRO’s conclusion that the student was not entitled to summer services”. In particular, the Appeals Court pointed out that the student “did not lose any credits during her hospitalization in the spring and summer of 2015” and that the student “remained on track” to graduate when she returned to school in the fall of 2016. The Appeals Court also pointed out that the student “did not require an inordinate period of review at the beginning of the [2016-17] school year to maintain academic progress; to the contrary” [the student] made substantial academic progress without such review”. The Appeals Court also held that the student “suffered no regression -- academically or emotionally -- over the winter breaks” and that therefore the SRO had “adequately addressed any concerns that [the student] might regress without a structured and supportive environment during the summer months”.

FREE APPROPRIATE PUBLIC EDUCATION (FAPE) CUMULATIVE PROCEDURAL VIOLATIONS Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Was the absence of a district physician at the CSE meeting a violation of a FAPE. Conclusion: Reversing the SRO, the Court held that the absence of a district physician at the CSE meeting when combined with the “active exclusion” of the grandmother from the CSE meeting deprived the student of a FAPE. Basis of the Court’s Decision: The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage …, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

The Court first determined that the grandmother was unable to attend the CSE meeting because she got lost in the subway, the CSE proceeded without her, and she was therefor unable to meaningfully participate in that meeting. The Court concluded that the student was therefore denied a FAPE. In addition to this issue, the parent had timely requested on more than one occasion that the district physician attend the CSE meeting. The grandmother had made that request “given [the student’s] medical conditions and recent surgery” as she believed “it would have been more than appropriate to have a licensed physician give their opinion on [the student’s] educational program in his days of recovery”.

The Court first analyzed the SRO’s decision. With regard to this, the SRO had concluded that the physician’s absence did not involve a violation of a FAPE because “(1) the school psychologist did not think a medical doctor would have been helpful or necessary, (2) the CSE had information 349

regarding the student’s medical condition, and (3) the [grandmother’s] non-attendance at the meeting made the physician’s nonattendance of lesser consequence”.

The Court concluded that the SRO’s “findings are not supported by a preponderance of the evidence and the Court therefore does not defer to her conclusion”. With respect to the SRO’s first two reasons, the Court said that the SRO “relied heavily on the school psychologist’s testimony” which was, first, that it “would not have been helpful or necessary in making a recommendation” and, second, that the private school’s proposed IEP “provided a description of the student’s medical condition and his needs with respect to his medical condition”. The Court said, however, that the school psychologist was unable to explain why the CSE chose one classification over another and specifically that the psychologist was unable to answer “which of [the student’s] impairments [were not] related to his brain injury” and his response, which was that he “was not a brain doctor and therefore didn’t know”. The Court said that this “bel[ied] the adequacy of the psychologist’s opinions regarding the student’s medical conditions and [the SRO’s] reliance on those opinions”.

Regarding the SRO’s claim that because of the grandmother’s absence from the CSE meeting, this made it less important for the district physician to attend, the Court pointed out that the parent’s inability to attend the CSE meeting was attributable to the CSE’s “effective exclusion” from that meeting and amounted to a denial of FAPE. The Court said that “[t]hus, the SRO’s reliance on the [grandmother’s] non-attendance certainly [did] not cure the physician’s non-attendance” and that this reasoning was “nonsensical”. The Court said that the absence of the physician “only compounded the harm” caused by the absence of the grandmother at the CSE meeting as there was no one at that meeting “qualified to talk about the student’s “medical issues”.

The Court then turned to a review of the IHO’s decision and also found that lacking as well. In particular, while the IHO decision made clear that the grandmother had requested the physician to attend the meeting as that was necessary under the circumstances, no district physician attended. But, the Court said, the IHO decision went no further.

The Court then referenced State regulation that the CSE should include a school physician if specifically requested in writing and within 72 hours of the CSE meeting. The Court said that, as indicated above, the grandmother had satisfied these requirements; which the district conceded.

With this in mind, the Court held that the absence of a school physician was a “procedural violation” of the IDEA. The Court went on to explain that, “[o]nly procedural inadequacies that individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP constitute a denial of a FAPE”. See Carrillo v. Carranza, 20 Civ. 4639 (CM), 2021 WL 4137663 at *11 (S.D.N.Y. Sept. 2021), citing Knable v.

Bexley City School District, 238 F. 3d 755, 766 (6th Cir. 2001), cert. denied, 533 U.S. 950, 121 S.Ct.

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2593, 150 L.Ed.2d 752 (2001). 65 In this case, the Court said that the grandmother was “already denied an opportunity to participate in the creation of [the student’s] IEP because she was excluded from the meeting [and that the district’s] simultaneous refusal to accommodate [the grandmother’s] request for physician input at the meeting further exacerbated her lack of meaningful participation in the IEP process”.

The Court found that the absence of a district physician at the CSE meeting “when combined with [the grandmother’s] exclusion from the meeting, deprived [the student] of a FAPE.

Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) Dispute: Whether issues relating to the sufficiency of evaluative information, the district’s failure to provide the parent with a copy of the IEP, and the inaccuracy of the school location letter and related matters cumulatively denied the student a FAPE. Conclusion: The SRO held that issues relating to the sufficiency of evaluative information, the lack of receipt of the district’s IEP and the inaccuracy of the school location letter and related matters cumulatively denied the student a FAPE. Basis of the SRO’s Decision: In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a 12-month program, a highly structured learning environment and had needs relating to behavior management, language development, and social skills.

“The parent contends that the IHO failed to address procedural violations by the district which cumulatively denied her right to meaningfully participate in the CSE’s decision-making process and denied the student a FAPE. “In particular the parent asserts that [1] the district failed to evaluate the student in all areas of suspected disability, [2] failed to provide her with a copy of the [] IEP, and [3] did not provide needed information regarding the assigned school”. “[W]hen procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v.

Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E. v. New York City Dep’t of Educ., 694 F. 3d The Court cites to Carranza which relies on Knable, an earlier formulation regarding when a procedural violation denies the student a FAPE. At this point in time, the standard is that a procedural violation will constitute a violation of a FAPE if that procedural inadequacy (1) impeded the child’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or (3) causes a deprivation of educational benefits. R.E. v. New York City Dept of Educ., 694 F 3d 167, 190 (2d Cir. 2012), As you can see from the above, the cited reference is correct in relevant part. As indicated above, it is also the case that while a procedural violation may not in itself result in a violation of a FAPE, that violation -- when considered cumulatively with another -- may do so. Id. 65

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167, 190 (2d Cir. 2012). “However, under some circumstances, the cumulative impact of procedural violations may result in a denial of a FAPE even when the individual deficiencies themselves do not”. See L.O. v. New York City Dep’t of Educ., 822 F. 3d. 95, 123-24 (2d Cir. 2016); T.M. v Cornwall Cent. Sch. Dist., 752 F.3d 145, 170 (2d Cir. 2014); R.E. 694. F.3d at 190-91; see also A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 541 (2d Cir. 2017).

Issues relating to the sufficiency of evaluative information: The district’s CSE met on April 23, 2020 to develop the student’s IEP for the 2020-21 school year.

According to the prior written notice, the CSE relied on a number of documents to develop student’s IEP. These included a February 13, 2019 classroom observation done as part of the student’s turning five evaluation, a February 1, 2021 teacher’s report from the student’s private school, and February 1, 2020 progress reports from the student’s speech-language pathologist, occupational therapist, and physical therapist. The CSE’s district representative testified that she “did not believe the student had any recent testing” and that “she did not recall when the last psychological evaluation, speech-language evaluation, OT evaluation, PT evaluation, social history or classroom observation was completed”. With respect to the February 13, 2019 classroom observation, the district representative testified that “she did not recall reviewing [that] prior to the April 2020 CSE meeting” and “nor did she believe that she discussed the results with the author of the report”. Additionally, “[a]t the time of the hearing” the district representative also testified that she “could not recall the last time specific evaluations were conducted”. Although the district representative and the CSE had access to records through the district’s “SESIS” system it is not clear whether they had this access prior to or at the time of the meeting and whether they had access to the dates and types of evaluations or the text as well.

She also testified that at the time of the CSE meeting, the district was operating remotely due to COVID 19 “so there was no real testing being completed and no assessments could be given”.

The district representative further testified that the CSE relied on the student’s private school reports “because, at the time, they were the ones working directly with the student”. Her testimony was also that the district “developed an assessment-like checklist” for the teachers at the private school to complete but that this was not done as private school staff “felt that their progress reports were sufficient and encompassed everything about the student”. The district representative also “testified that the information the parent and teachers communicated at the time of the April 2020 CSE meeting suggested that the progress reports encompassed the student’s current levels of performance”.

The SRO reviewed in exhaustive detail the information in the classroom observation, the teacher’s progress report, and the speech-language, OT, and PT progress reports. The SRO concluded that given these documents as well as the teacher and parent’s input at the CSE meeting, “appear[ed]” to have provided “adequate information regarding the student’s strengths and needs”.

At the same time, the SRO also concluded that the hearing record “lacks information that should have been available to the April 2020 CSE”. Regarding this, the SRO cited to State and federal 352

regulations relating to, among other things, the necessity for the “CSE to consider the results of the initial or most recent evaluations” “[i]n developing the recommendations for a student’s IEP and when conducting an annual review of the student’s IEP”. See 8 NYCRR 200.4(d)(2); (f)(iii); 34 CFR 300.324(a)-(b).

The SRO further pointed out that there was no information in the record from which it could be reliably determined that evaluative information other than the classroom observation was a part of the student’s turning five review. Likewise with respect to the April 2020 CSE meeting, other than the 2019 classroom observation and private school reports, as indicated above, there is no information in the record to show when and if the CSE considered the most recent evaluations of the student and nor was their evidence produced at the hearing to show that the student had been properly evaluated; “a procedural violation” the SRO said.

The SRO said that “most troublingly, by not including copies of the student’s most recent evaluation in the hearing record (whether or not it was reviewed by the April 2020 CSE), the district has made it impossible to properly review some of the evaluation claims contained within the parent’s due process complaint notice”. For example, these included claims that the district “failed to conduct sufficient evaluations of the student prior to the April 2020 IEP review; failed to include the student’s parents in the evaluation process: failed to review the already existing data and decide what additional data/evaluations were required; and that these failures rendered the CSE unable to create an appropriate IEP”. Claims to answer, the SRO said, which would require “knowing when the student was last evaluated, what evaluative information was available to the CSE, or what information about the student was contained within the missing evaluations…”; all information that was not available in the record. The SRO pointed out here that “the Second Circuit has held that the failure to memorialize which evaluative information a CSE reviewed constitutes a serious procedural violation.” See L.O. at 109-11.

The SRO reinforced this view by concluding that as a result of “the failure of the CSE to document what, if any, information from the student’s initial evaluation was considered in developing the April 2020 IEP, other than the classroom observation, precludes me from finding that the CSE fulfilled its obligation to consider the student’s initial evaluation, and testimony referencing the general availability of such materials though “SESIS” does not suffice to overcome that conclusion”. “Accordingly”, the SRO said, “given the district’s failure to reference the student’s last evaluation in the IEP or prior written notice or to have the evaluative materials at issue admitted into evidence at the impartial hearing impedes any adjudication of the specific claims raised by the parent with respect to the sufficiency of the district evaluations”.

The SRO found, as a result, that the district’s failure to consider the student’s initial evaluation was a procedural violation that contributed to a denial of a FAPE. The parent’s lack of receipt of the IEP:

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“The district is required to have an IEP in effect for each student with a disability at the beginning of the school year and provide a copy of the IEP to the parents”. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 (2d Cir. 2005) (citing to the proposition that school districts must only ensure that a child’s IEP is in effect by the beginning of the school year and that the parents are provided a copy); see also 34 CFR 322(f); 300.323(a); 8 NYCRR 200.4(e)(1)(ii), (e)(3)(iv). “Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE if the violation (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits”. See 20 U.S.C 1415 (f)(3)(e)2; 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

In this case, the parent requested a copy of the IEP on a number of occasions, but did not receive it prior to the beginning of the 12-month school year. “The district acknowledges that the failure to provide the parent with an IEP is a procedural violation but argues that it does not rise to the level of a denial of FAPE because the parent attended the CSE meeting, was aware of the contents of the IEP, and received both the prior written notice and the school location letter”.

The SRO found that “the parent did attend the CSE meeting and there is evidence that she had at least some knowledge of the program and placement recommendations” in the IEP. The SRO also found, however, that in the parent’s 10-day notice, the parent advised the district that “in the absence of an IEP or any information regarding the public-school placement, my client will place the student [at the private school] and if the parent’s concerns are not addressed, we will request an impartial hearing to pursue public funding for the student’s tuition and services at this placement.”

The SRO pointed out that the prior written notice (which the parent received) “is not meant to be a substitute for an IEP and does not contain important educational information about the student such as the student’s present levels of performance, annual goals, and management needs”.

The SRO concluded that in this case, “the parent put the district on notice that she was requesting the April 2020 IEP and would pursue a unilateral placement at public expense absent receipt of that document”. The SRO pointed out that the parent’s dispute was the district’s “failure to provide” the parent with a copy of the April 2020 IEP “in the first instance, as it was obligated to do”. The SRO continued that “[t]he district was given an opportunity to cure that procedural defect but failed” to provide a copy of the April 2020 IEP to the parent prior to the beginning of the student’s 12-month school year as required. “[U]nder the circumstances present, the parent lacked a complete understanding of the student’s educational program, as shown in both her 10day notice and the due process complaint notice” because of this.

The SRO concluded that “the district’s failure to provide the parent with a copy of the April 2020 IEP contributed to a denial of a FAPE to the student”.

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The district’s failure to provide an accurate school location letter and related issues: “[T]he parent asserts that the school location letter [is] deficient as it did not contain the correct contact information for the assigned school” and further, “that the assigned school failed to respond to her attempts to contact and obtain information from the school”. “The district acknowledges that the contact information was incorrect but argues that the parent did not detail her attempts to contact the school or demonstrate what information she was attempting to obtain. Additionally, the district asserts that, in any event, a parent does not have an unqualified right to visit an assigned school”.

Regarding the parent’s right to receive information about an assigned school site, “OSEP has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children”. Letter to Mamas 42 IDELR 10 (OSEP 2004) 66. See also J.B. v. New York City Dep’t of Educ., 242 F. Supp. 3d 186, 195 (E.D.N.Y. 2017); J.C. v. New York City Dep’t of Educ., 2015 WL 1499389 at *24 n. 14 (S.D.N.Y. 2015). “On the other hand, there is [extensive] district court authority indicating that a parent has a right to obtain information about an assigned publicschool site ... in order to evaluate whether the IEP can be implemented at the proposed location”.

See H.L. v. New York City Dep’t of Educ, 2019 WL 181307, at *9 (S.D.N.Y. Jan 11, 2019); F.B. v.

New York City Dep’t of Educ., 132 F. Supp. 3d 522, 538-45 (S.D.N.Y. 2015); V.S. v. New York City Dep’t of Educ., 25 F. Sup. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. v. New York City Dep’t of Educ., 23 F. Supp. 3d 210, 227-29 (S.D.N.Y. 2014).

In this case and regarding the district’s claims that the parent failed “to provide sufficient detail with respect to her attempts to contact the assigned school”, the SRO found that “the parent informed the district in her 10-day notice … that she had called these contact numbers repeatedly, and left messages, but had not received a response and she also explicitly requested information as to how to receive information about the proposed program … or arrange for a visit”. Further, as indicated above, the district acknowledged “that the school location letter contained an incorrect phone number and that this caused a continuous issue affecting the assigned school and the district office”.

Notwithstanding this, the SRO pointed out that “the district did not respond to the parent or otherwise attempt to connect the parent to the school for the purpose of the parent receiving more information concerning the assigned school site”.

Further, as indicated above, the SRO pointed out that “[w]hile the district may be correct that a parent does not have a general entitlement to visit a proposed school, it [the district] also The OSEP letter also advises that “[t]he determination of who has access to classrooms may be addressed by State and/or local policy” and further, that “we encourage school district personnel and parents to work together in ways that meet the needs of both the parents and the school, including providing opportunities for parents to observe…proposed placement options.”

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acknowledges in its answer that, in accordance with some of the case law cited above, a parent has a right to obtain information about an assigned public-school site”. Regarding the claim that the parent did not “demonstrate what information she was attempting to obtain”, the SRO pointed out that the district did “not cite any authority for the proposition that the parent must particularize his or her questions or concerns in order to find that a district impeded the parent’s ability to gain information from the assigned school”. With respect to this, the SRO pointed out that “[h]ere, the parent requested both a copy of the IEP and a means of contacting the assigned school to obtain additional information about the school and/or to arrange a visit”. The SRO also pointed out that “[t]he district [did] not dispute that it was obligated to provide the parent with a copy of the April 2020 IEP and also acknowledges that the parent had a right to obtain information about the assigned school”. The SRO concluded that “[d]espite being informed of the parent’s lack of an IEP or an effective way to contact the school, the district failed to provide the parent with either” The SRO held that “[a]s a result, the district’s failure to respond to the parent’s request for further information regarding the assigned school also contributed to a denial of a FAPE to the student”.

CONCLUSION As indicated above, the SRO concluded that “the district committed several procedural violations which impeded the parent’s ability to participate in the decision-making process regarding the student’s educational programming and, each of which contributed to a denial of FAPE”. The SRO continued and said that “[i]n review of the cumulative effect of these procedural violations, it cannot be determined that they did not affect the substantive appropriateness of the April 2020 IEP (see L.O. v. New York City Dep’t of Educ., 822 F.3d at 123-24). The SRO found that “[t]his impeded the student’s right to a FAPE, hindered the parent’s opportunity to participate in the decision-making process or otherwise deprived the student of educational benefits (20 U.S.C. 1415[(f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).” And, the SRO further found that “the cumulative effect of these procedural violations resulted in a denial of FAPE to the student”.

Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Whether the district’s procedural violations denied the student a FAPE. Conclusion: The Court found that the district’s procedural violations did not deprive the student of a FAPE. Basis of the Court’s Decision: “The Second Circuit has emphasized that even minor violations may cumulatively result in a denial of a FAPE”. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 191 (2d Cir. 2012).

However, “the cumulative effect of these violations … must display a pattern of indifference to

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the procedural requirements of the IDEA and carelessness in formulating a child’s IEP”. See L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 124 (2d Cir. 2016).

In this case, the Court found “that the [district] committed two procedural violations not waived by the [p]arents, in formulating [the student’s] IEP”. First, the district failed to list the names of the district physician and the parent member of the CSE in the notice of the CSE meeting. See 8 NYCRR 200.5(c)(2). Regarding this, the Court indicated that the parents recognized this and that the district corrected the error. “Second, the [district] permitted the [district] school physician to attend the CSE meeting electronically without the [p]arents’ permission.” See 8 NYCRR 200.3(a)(vii); (f); 200.5(d)(7).

The Court first stated that “[t]he IHO did not address the cumulative effect of the procedural violations” and that, while the SRO set forth the correct cumulative effect standard, he did not “expressly address the [district’s] procedural violations’ cumulative effect”. The Court found that the IHO and the SRO each had a responsibility to address the cumulative effects of the relevant violations. That they did not, the Court said, was error.

Notwithstanding the SRO’s error in not determining whether the procedural errors denied the student a FAPE, the Court pointed out that the SRO did, however, define those violations as “relatively innocuous and that neither significantly impeded the [p]arents’ ability to participate in the IEP process” and that, in fact, it was the parents and not the district “who conducted themselves in a manner that limited their own participation in the meeting”.

The Court agreed with the SRO that these two errors were innocuous and “further [found] that the two procedural violations, taken together did not result in the denial of a FAPE and did not significantly impede the parent’s participation in the IEP process”.

Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 9898 (2017) Dispute: The parents assert that FAPE is an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities. The district disagrees and asserts that an IEP need not promise any particular level of benefit so long as it is reasonably calculated to provide some benefit as opposed to none.

Conclusion: The Supreme Court held that to meet its substantive obligation under the IDEA a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

Basis of the Supreme Court’s Decision: The Court rejected the district’s position, which was based on specific language in Bd. of Ed of Hendrick Hudson Cent Sch. Dist. Westchester Cty v.

Rowley, 458 US 176 (1982) which, the Court said the district “made too much of. Regarding the statement that “the face of the IDEA imposed no explicit substantive standard”, the Court [IDEA]” (See Rowley at 193 n. 15). Relative to the language in Rowley “concerning the requirement that States provide instruction calculated to confer some educational benefit,” (emphasis added) (see 357

Rowley at 200) the Court said that in Rowley there was “no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits” and that “(t)hat the Court was not concerned with precisely articulating a governing standard for closer cases”. Regarding Rowley’s statement “that the [IDEA] did not guarantee any particular level of education” (see Rowley at 192), the Court said that this “simply reflects the unobjectionable proposition that the IDEA cannot and does not promise any particular educational outcome.” “More important,” the Court said that the district’s reliance on these “isolated statements run headlong into several points on which Rowley is crystal clear.” First, the language in Rowley that “the determination of when handicapped children are receiving sufficient educational benefits presents a …difficult problem” (Rowley at 200, 202) (emphasis in original) and second that Rowley “expressly declined to establish any one test for determining the adequacy of educational benefits under the Act” (emphasis in original).

With respect to the parents’ position, the Court pointed out that their standard was “strikingly similar to the [position] the lower courts adopted in Rowley, and [that] it [was] virtually identical to the formulation advanced by Justice Blackmun in his separate concurring decision in Rowley; both of which were “rejected” by the majority in Rowley “in clear terms”.

As indicated above, the Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. With respect here to its “reasonably calculated qualification”, the Court said that “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” (emphasis in original) With respect to the need to make “progress” the Court said that “the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (emphasis added). Finally, that such progress be “appropriate in light of the child’s circumstances,” the Court said that this “should come as no surprise” and only reflects the fact that “a focus on the particular child is at the core of the IDEA”.

Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) Dispute: Whether the district provided the parents with notice of the student’s assigned school and if not, whether that deprived the student of a FAPE. Conclusion: The SRO upheld the IHO’s finding that the district did not properly provide the parents with notification of the student’s assigned school and that this was a denial of FAPE. Basis of the SRO’s Decision: A district is required at some point prior to or contemporaneous with the date of initiation of services under the IEP to notify parents in a reasonable fashion of the bricks and mortar location of the special education program and services in the student’s IEP. As set forth below, the absence of such notification is a denial of FAPE.

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The district held a CSE meeting “on December 11, 2019 to develop an IEP for the student for the remainder of the 2019-20 school year and a portion of the 2020-21 school year”. The student’s mother testified that she never received a response to her August 2020 letter and that she did not receive the IEP or a school location letter. She testified that “she first saw the December IEP and the school location letter in April 2021, during the course of the impartial hearing”. She also testified that “there came a time when her husband did find the email from the district with the school location letter; however, but that because her husband had never been the point of contact for the district, and she had been”, her husband merely put it amongst his papers.

Further, according to the evidence at the hearing, “the district used an incorrect email address for the mother and sent the student’s school location letter to that incorrect email address”.

The SRO also concluded that the IHO correctly found that the “district’s attempt to deliver the school location letter via email was not in accord with its own practices and was not reasonably calculated to provide the parents with notice”. In particular, according to the FAQs on the district’s website, “documents may be sent to a parent via email after getting the parent’s consent to receive documents via email”. The website “further indicated steps that should be taken to obtain a parent’s consent for communication via email, including attempting to reach the parent by telephone”. Here, “[t]he student’s mother testified that the CSE had not communicated with the student’s father to obtain his email address and consent to provide documentation by email”. “The student’s mother also testified that the district had not ever requested permission or consent to communicate with her via email”. The record also showed that notwithstanding that the district had the parents’ mailing address and that it had previously provided “important” documents such as IEPs or school location letters “by mail”, in this case, the district appeared to have elected to only email those documents to the parents without even a follow-up telephone call.

The SRO concluded that “the district failed in its obligation to notify the parents, either in writing or orally, as to where or how the student could access his IEP services despite efforts made by the parents to obtain that information from the district.” The SRO held that this was a “procedural inadequacy” which “resulted in the parents being provided with too little information as to how or where the recommended special education program would have been implemented and therefore resulted in a denial of FAPE”.

MISCELLANEOUS Doe v. E. Lyme Bd. of Educ., 962 F.3d 649 (2d Cir. 2020) Dispute: Did Endrew F. change controlling law regarding FAPE in the Second Circuit.

Conclusion: The Circuit Court held that Endrew F. did not change controlling law in the Second Circuit with respect to FAPE. Basis of the Second Circuit’s Decision:

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“In Endrew F 67., the Supreme Court determined that the IDEA’s substantive requirements were not met where the student had received an educational benefit that is merely … more than de minimis”. With respect to this, the Circuit Court characterized the holding in Endrew F. as the requirement that the IDEA “demands more”; and in particular, “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”.

According to the Circuit Court, it had previously held that to be adequate an IEP “must be likely to produce progress that is more than trivial advancement” (Doe v. E. Lyme Bd. of Educ.,790 F.3d 440, 450 [2d Cir. 2015], quoting Cerra v. Pawling Cent. Sch. Dist. 427 F.3d 186, 194-95 [2d Cir 2005]). In light of that and the above, the parent in this case equated “trivial advancement with a de minimis educational benefit” and claimed that therefore under Endrew F. “the IEP was evaluated under too low a standard because providing more than trivial advancement is hardly offering an education at all”.

Not the case, said the Circuit Court, which went on to write that “[h]ad the school district successfully defended [the student’s] IEP as adequate because it provided only a trivial advancement there would be a good deal of traction to [the parent’s] argument”. The Circuit Court said that this was “not how [it] measured the adequacy of [the student’s] IEP”. To the contrary, the Circuit Court said that under Cerra, “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement”.

In a post-Endrew F. case, the Circuit Court went on to explain that Cerra did “not stand for the proposition that the IDEA is satisfied with any progress above the floor of trivial advancement and it should not be cited for that proposition” (see Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 757 n.12 [2d Cir. 2018]). In a sleight of hand, the Court said that this was because in Cerra the State Review Officer found that the student had made meaningful – not simply more than trivial or de minimis – progress.

The Circuit Court also set forth that in Mr. P., 885 F.3d at 757, it had previously “specifically observed that prior decisions of [the Circuit Court] are consistent with the Supreme Court’s decision in Endrew F.” and that Endrew F, did “not signal a change in the law of this Circuit”.

INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE (IEE) Application of a Student with a Disability, Appeal No. 25-032 (May 20, 2025) Issue: independent educational evaluation (IEE) at public expense – scope of IEE Dispute: whether a parent may request an IEE at public expense on the basis that the existing evaluation of the student is too limited in scope.

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Endrew F.l ex. rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, -- U.S. -- 137 S.Ct. 988, 997 (2017).

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Conclusion: the SRO determined that a parent could request an IEE at public expense on the basis that the existing evaluation of the student is too limited in scope, Key Take Away: Parents should remember that they have the right to request an IEE at public expense on the basis that the existing evaluation of the student are “too limited in scope”.

Reasoning: The student has received diagnoses of autism spectrum disorder and attention deficit hyperactivity disorder and is home-schooled.

The CSE met on November 8, 2023 to develop an IESP for the student. It determined that the student was eligible to receive special education as a student with autism and provided the student with a set of special education services.

The district issued a prior written notice on November 29, 2023. It stated that the results of the November 8, 2023 CSE meeting were based on a July 2023 psychoeducational evaluation, a July 12, 2023 Vineland-3, a July 25, 2023 PT assessment, an August 16, 2023 speech-language assessment, and a September 18, 2023 OT assessment.

On May 11, 2024, the parent emailed the district and requested an IEE at public expense. In a follow-up letter dated May 18, 2024, the parent notified the district that she disagreed with the CSE’s recent evaluations because they failed to comprehensively evaluate the student. She requested an IEE at public expense to include (1) a neuropsychological evaluation, (2) a speechlanguage evaluation, (3) an OT evaluation (4) a PT evaluation; (5) an ABA skills assessment, and (6) an FBA. The district never responded by either requesting an impartial hearing or authorizing the requested IEE at public expense.

The parent submitted a due process complaint on June 13, 2024. The due process complaint advised the district that the parent was requesting funding for each of the above items.

After two pre-hearing conferences, the impartial hearing began on September 5, 2024. At the August 2, 2024 prehearing conference the parent’s attorney indicated that as a part of a settlement agreement there might be less concern about the physical therapy assessment and the OT assessment. However, at the conclusion of that prehearing conference the parent’s attorney advised that he did not want to withdraw any of the parent’s request for evaluations.

At the impartial hearing the parent said that the district’s evaluation of the student was not comprehensive enough. The district said that it should be able to raise some defenses even though it had not requested a hearing or provided an IEE at public expense. The district said here that it disputed the extent of the evaluations that the parent requested.

The IHO issued a decision on December 3, 2024. The IHO found that the parent stated disagreement with the district’s evaluation of the student and appropriately requested an IEE of the student at public expense. The IHO said that the parent had not identified any areas of need that the district had failed to address in the IESP. Therefore, the IHO said that the issue was 361

whether the district knew or suspected the categories of disabilities for which the IEE at public expense was requested.

The IHO also said that the district lacked a reason to evaluate the student beyond what was required by law for an initial evaluation and that “nothing in the hearing record reflected that the student’s behavior interfered with instruction”.

Therefore, the IHO further said that that the district should fund “an independent re-evaluation of the student which would include a physical examination, a psychological /neuropsychological evaluation, and a social history and observation of the student. The IHO did not order funding of an independent ABA skills assessment, an FBA or independent speech-language, PT or OT assessments. About the OT and PT evaluations, the IHO said that the parent had withdrawn this request at the first pre-hearing conference. About a more comprehensive evaluation, the IHO said that the “re-evaluation” evaluators could determine the scope of additional assessments based on their initial findings.

Both the parent and the district appealed the IHO’s decision to the SRO. The parent said that the IHO made a mistake in limiting the scope of the IEE at public expense and that the IHO should have ordered district funding for an FBA; an ABA skills assessment; and speech-language, OT and PT assessments. The district said that the IHO made a mistake in ordering any independent IEEs at public expense.

The SRO disagreed with the IHO’s decision to conclude that the parent had withdrawn her request for an independent PT and OT evaluation at the prehearing conference. The SRO said that the parent had raised the OT and PT evaluations as possible concessions for settlement agreement purposes but that no settlement had then occurred. The IHO also said that there was no indication in the proceeding that the parent had consented to the withdrawal of his request for an independent OT and PT evaluations.

The SRO said that the IHO had limited the parent’s request for an IEE at public expense to the barest of possible minimums and pointed out that the IHO had ordered evaluations limited to what the student would have received in an initial evaluation.

The SRO also said that the law did not support the IHO’s limitation of relief. The SRO pointed to governing law that nothing provided a parent from challenging an evaluation on the ground that it was too limited and that to the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent would be free to disagree with an evaluation based on its deficient scope.

Therefore, the SRO modified the IHO’s order to provide that the IEE at public expense should include an FBA; an ABA skills assessment; and speech-language, OT and PT assessments, all as requested by the parent.

Application of a Student with a Disability, Appeal No. 25-032 (May 20, 2025) Issue: independent educational evaluation (IEE) at public expense – rates and providers 362

Dispute: whether the IHO could establish lower rates or providers other than what were requested by the parent Conclusion: The SRO decided that in this particular case the IHO could not limit the providers or rates requested by the parent.

Key Take Away: If a district wants to object to a particular evaluator or rate requested by a parent, it must show that the request falls outside its cost containment or maximum allowable rate policies and that it has provided the parent with an opportunity to show that “unique circumstances” justify a particular request.

Reasoning: The student has received diagnoses of autism spectrum disorder and attention deficit hyperactivity disorder and is home-schooled.

The CSE met on November 8, 2023 to develop an IESP for the student. Based on a number of evaluations, it determined that the student was eligible to receive special education as a student with autism. It provided the student with a set of special education services.

On May 11, 2024, the parent emailed the district and requested an IEE at public expense. In a follow-up letter dated May 18, 2024, the parent notified the district that she disagreed with the CSE’s recent evaluations. She again requested an IEE at public expense. The IEE included a number of evaluations. The parent requested specific rates and evaluators for each evaluation.

The district never responded to the parent’s letters, neither by requesting an impartial hearing nor authorizing the requested IEE at public expense. The district did not make any objection to any of the parent’s requested evaluators or rates.

The parent submitted a due process complaint on June 13, 2024. The due process complaint advised the district that the parent was requesting certain additional evaluations. The parent sought the IEE at public expense from specific providers and at specific rates. The district did not object to any of the evaluators or requested rates.

The impartial hearing began on September 5, 2024. During the impartial hearing, the district disagreed with the costs of the evaluation requested by the parent. It did not, however, present any evidence of its cost containment criteria or assert that the parent sought an IEE at public expense that exceeded such criteria without justification.

The IHO determined that the parent was eligible to receive an IEE at public expense. She ordered that independent evaluations be conducted by providers of the parents choosing provided the parent followed all district protocols and guidelines for procuring an independent evaluator. The IHO said that she would not address a specific provider or rate due to “shifting prices and availability for providers”.

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The parent and district appealed the decision of the IHO to the SRO. The SRO modified the IHO’s decision about the scope of the IEE at public expense. Regarding rates, the SRO pointed out a number of things. First, the IHO pointed out that if the district has a policy regarding reimbursement rates for IEEs at public expense, it may apply such policy to the amounts it reimburses parents for the private evaluations. Second the district may also establish maximum allowable charges for specific evaluations to avoid unreasonable charges for IEEs at public expense. Third, the district must allow parents the opportunity to demonstrate that “unique circumstances” justify an IEE at public expense that does not fall within the district’s cost criteria.

The SRO said that given the limitations of evidence provided by the district at the impartial hearing, to the extent that the IHO limited the costs of the IEE at public expense, this was wrong and the district was required to fund the IEE at public expense through the providers identified by the parent at rates not to exceed what was stated in the parent’s IEE request and its due process complaint.

Application of a Student with a Disability, Appeal No. 25-032 (May 20, 2025) Issue: independent educational evaluation (IEE) at public expense -- delay Dispute: Whether the district acted with “unnecessary delay” regarding the parent’s request for an IEE at public expense.

Conclusion: The district did not show that it acted properly in responding to the parent’s request for an IEE at public expense.

Key Take Away: A parent should remember that a district must approve a parent’s request for an IEE at public expense or request an impartial hearing regarding the appropriateness of its own evaluation without “unnecessary delay”.

Reasoning: The student has received diagnoses of autism spectrum disorder and attention deficit hyperactivity disorder and is home-schooled.

On May 11, 2024, the parent emailed the district and requested an independent educational evaluation at public expense (IEE).

In a due process complaint notice dated June 13, 2024, the parent said that as of that date, the district had neither approved the requested IEE at public expense nor requested an impartial hearing to defend its evaluations. As relief, the parent requested district funding for an IEE at public expense. An impartial hearing was subsequently scheduled. At that time, it had been almost four months since the parent had requested the IEE at public expense. Because of this, the parent said that the district had “unnecessarily delayed” its response to the parent for an IEE at public expense. The parent also said at the impartial hearing that the district therefore should not be allowed to defend its evaluation of the student. The district agreed at the impartial

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hearing that it had not responded to the parent’s request for an IEE at public expense but said that it still should be able to raise a defense why its evaluation was “appropriate”.

The district did not present at the impartial hearing evidence about its standard practice for responding to a request for an IEE at public expense or the district’s response to this parent’s request for an IEE at public expense.

The IHO issued a decision on December 3, 2024. The IHO decided that the district did not timely respond to the parent’s May 11, 2024, request for an IEE at public expense. The IHO decided that the parent therefore and had a right to an order directing the district to fund an “independent reevaluation” of the student.

The district appealed the IHO’s decision to the SRO. It said that the IHO made a mistake in awarding an IEE at public expense as at the time of the due process complaint notice there had not been an unnecessary delay after the parent’s request for an IEE at public expense.

The SRO pointed out that a district is required to grant a requested IEE at public expense or initiate due process to defend its own evaluation and must do so “without unnecessary delay”.

The SRO said that it is not one of the district’s options to refuse or ignore the parent’s request.

The SRO further went on to say that the determination of whether there has been an unnecessary delay is “fact specific”.

Under the circumstances here, the SRO concluded that there was an “insufficient basis in the hearing record to disturb the IHO’s finding that the district failed to respond to the parent’s request for an IEE at public expense without unnecessary delay”.

Application of a Student with a Disability, Appeal No. 25-032 (May 20, 2025) Issue: independent educational evaluation (IEE) at public expense – compensatory education Dispute: whether the IHO could order the provision of compensatory education for the student on the basis of an IEE at public expense when FAPE is not at issue Conclusion: The SRO determined that the IHO could not order compensatory education for the student on the basis of an IEE at public expense when FAPE was not an issue.

Key Take Away: A parent should remember that an IHO may not order compensatory education on the basis of an IEE at public expense when the parent has not made the absence of FAPE an issue at the impartial hearing.

Reasoning: The student has received diagnoses of autism spectrum disorder and attention deficit hyperactivity disorder and is home-schooled.

The CSE met on November 8, 2023 and developed an IESP for the student.

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On May 11, 2024, the parent emailed the district and requested an IEE at public expense. In a follow-up letter dated May 18, 2024, the parent notified the district that she disagreed with the CSE’s recent evaluations. She again requested an IEE at public expense. The requested IEE at public expense included a number of requested evaluations.

The parent submitted a follow-up due process complaint on June 13, 2024. The due process complaint advised the district that the parent was requesting certain additional evaluations and sought an IEE at public expense. In the request, the parent said that the hearing request was limited to obtaining educational records, an IEE at public expense, and compensatory education “based on same”. The parent said that he “reserved the right to re-file for any substantive FAPE deprivation claims for this and any school years”.

The impartial hearing began on September 5, 2024 after two prehearing conferences. During one prehearing conference, the parent requested an IEE “on an interim basis”. The IHO concluded that the parent was only eligible for a limited IEE and in particular for “an order directing the district to fund an independent re-evaluation of the student”. The IHO held open the possibility that the independent evaluators could determine the scope of additional evaluations based on initial findings. The IHO also ordered the district to schedule a CSE meeting to consider the IEEs within 30 days of their completion. The IHO denied the parent’s request for compensatory education, without prejudice.

The parent appealed to the SRO the IHO’s decision to deny compensatory education. He said that the IHO should have ordered an IEE at public expense and allowed the parent to use the findings of the resulting re-evaluation reports to seek compensatory education. In the parent’s written argument to the SRO, he also argued that his complaint did not involve any FAPE issues in the IESP. The SRO’s May 20, 2025 decision pointed out that the parent’s attorney had requested the IEE at public expense on an interim basis – as a part of an impartial hearing. The SRO said that this was within the powers of an IHO. However, the SRO also said that “absent allegations of a denial of FAPE” an IEE at public expense would not have informed the hearing. The SRO then pointed to the parent’s statements to the IHO and to the SRO that while the parent was requesting an IEE at public expense there were not any FAPE issues involved in the IESP. The SRO concluded that “there being no allegation of a denial of FAPE “ there was no basis for an award of compensatory education.

Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) Issue: Independent Educational Evaluation (IEE) Dispute: Was the parent eligible for the public funding of an IEE. Conclusion: The parent was not eligible for the public funding of an IEE. 366

Key Take Away: A parent cannot request an IEE at public expense until the parent first shows that they disagree with a specific evaluation conducted by the district.

Reasoning: This case concerns a student with a rare brain disease that impairs motor function and who is eligible to receive special education as a student with a traumatic brain injury.

In October 2022, the parent filed a due process complaint notice. The parent requested public funding for an independent educational evaluation (IEE).

The IHO denied the parent’s request for an IEE because she did not previously express that she disagreed with any specific district evaluation. Upon review by the SRO, the SRO pointed out that because the parent only vaguely disagreed with an unspecified evaluation, she was not legally entitled to public funding for an IEE. The IHO’s determination to deny the parent’s request for an IEE was upheld.

The parent appealed this ruling to the United States District Court for the Southern District of New York. The District Court first pointed out that a parent is only entitled to one IEE each time the parent disagrees with an evaluation conducted by a public agency. 34 CFR 300.502.

Consistent with this, the District Court cited caselaw to the effect that a parent must show that they disagreed with the district’s evaluation to be entitled to an IEE at public expense.

The District Court upheld “the SRO’s decision to deny a publicly funded IEE because [the parent] has made no showing that she disagrees with anything contained in the IEE provided by the [district]”.

Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023) Dispute: Whether the parents should be reimbursed for expenses incurred for an October 2021 OT evaluation and a December 2022 neuropsychological evaluation.

Conclusion: The SRO concluded that the parents should be reimbursed for expenses for the December 2022 neuropsychological evaluation as an IEE at public expense; however, the SRO also concluded that the parents did not state their disagreement with any relevant district OT evaluation and thus the parents’ OT evaluation would not be considered an IEE at public expense.

That was not the end of the story as the SRO found that reimbursement of the October 2021 OT evaluation should be considered a remedy for the denial of a FAPE resulting from the district’s failure to meet its burden to show that it did not violate its child find obligation.

Basis of the SRO’s Decision: The student attended a private school for the 2020-21, 2021-22, and 2022-23 school years. “In April 2021 (pre-kindergarten), the parents became aware that the student had been spending much of his school day in the principal’s office due to behavior problems.” At that time, the 367

parents made arrangements and “hired a behavioral specialist to observe the student and provide guidance to his teachers”. During the fall of the 2021-22 school year and through February of that school year, the parents made private payments to provide the student with an OT evaluation, OT services, and a special education itinerant teacher services (SEIT)/behavior specialist. At the end of the 2021-22 school year, the parents worked with the school so that the student would be “paired with a supportive team of teachers for the following school year”.

In early 2022, because of his “continued struggles in the classroom”, the private school suggested that the student be evaluated by the district to determine his eligibility for special education services. The student received a number of evaluations in February and March 2022.

The CSE convened on April 5, 2022, and found the student eligible for special education as a dually enrolled student with an emotional disturbance and created an individualized education services program (IESP) for the student with an implementation date of May 3, 2022. Among other things, the CSE recommended that the student receive OT, individual counseling, and a fulltime 1:1 paraprofessional. The CSE also completed an FBA during that meeting.

The parents made arrangements for a private neuropsychological evaluation of the student in the fall of 2022, which resulted in a December 2022 evaluation report.

The parents, by email to the district dated March 24, 2023 “noted that the district conducted an evaluation of the student in the spring of 2022 and stated due to our disagreement with this evaluation, my husband and I obtained an independent neuropsychological evaluation of the student at our own expense”. The parents also attached a copy of the evaluation report to their email.

The parents filed a due process complaint notice dated April 3, 2023, alleging that the district failed to provide the student with a FAPE during the 2020-21, 2021-22, and 2022-23 school years.

Among other things, the parents alleged that the district failed in its child find obligations for the 2020-21 school year and a portion of the 2021-22 school year. For relief, the parents requested reimbursement for the OT, SEIT, and tutoring services they had provided, an order to fund a 1:1 behavioral support professional, an independent FBA and BIP, for the first-time reimbursement for the October 2021 OT private evaluation and the December 2022 private neuropsychological evaluation, and to fund appropriate compensatory services.

With particular respect to the parents’ request that the district reimburse them for the December 2022 private neuropsychological evaluation, the parents “alleged [in their due process complaint notice] that the district failed to evaluate the student in all areas of suspected disability, identified the FBA as an evaluation they disagreed with and requested reimbursement for the December 2022 neuropsychological evaluation”.

The SRO considered the questions presented. Among other things, the SRO pointed out that notwithstanding the fact that the parents asserted that the district “did not have appropriate procedures in place to locate, identify, and evaluate the student during the 2020-21 and 2021368

22 school years”, the district failed to “present any evidence that it followed its own child find procedures [and] thus the district did not meet its burden for [the Child find] issue.” In so doing, the SRO concluded that the district had denied the student a FAPE. The SRO also took up the parents’ request for reimbursement of the neuropsychological evaluation. “The IDEA and State and federal regulations guarantee parents the right to obtain an IEE, which is defined by State regulation as an individual evaluation of a student with a disability or a student thought to have a disability conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student. Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at private expense. If a parent requests an IEE at public expense the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If a school district’s evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense. Additionally, both federal and State regulations provide that a parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.”

The SRO reviewed the parents March 24, 2023, email and advised that while the email “disagreed with the district’s evaluations, [] the email did not specifically request the district to fund an IEE at public expense”. “Accordingly,” the SRO concluded that “the email did not put the district on notice that the parents were requesting district funding for the December 2022 neuropsychological evaluation and [that] instead the district was notified for the first time of the parents’ intent to seek district funding for an IEE in the April 2023 due process complaint notice”.

The SRO went on to say that “[in] past decisions … [SROs] have permitted a parent to request a district-funded IEE in a due process complaint notice in the first instance”. However, the SRO went on to say, that “they have also expressed reservations that this is not the process contemplated by the IDEA and its implementing regulations, including the observation that the approach has caused more problems than it resolves”.

The SRO further pointed to the fact that the Second Circuit has observed that “at no point does a parent need to file a due process complaint notice to obtain an IEE at public expense”. See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 168-69 (2d Cir. 2020). She also explained that her “continued study of the judicial and administrative guidance on the topic has confirmed [] that adoption of a change from the previous approach of allowing the parent to initially disagree with a district evaluation and request an IEE in a due process complaint notice (without attempting to raise such disagreement with the district first) is often warranted”.

In this case, however, the SRO explained that “the parents’ March 24, 2023 [email], even without a specific request for district funding, was sufficient to put the district on notice that the parents disagreed with its evaluation and is minimally sufficient to allow the request for funding to be 369

raised in the due process complaint notice in the first instance”. The SRO continued that “as long as the parents’ dissatisfaction with the district’s assessment of the student was conveyed to the district in order to give the district an opportunity to defend its evaluation”, it was appropriate to find that “the parents’ March 24, 2023 email in addition to the parents’ due process complaint notice suffice[d] for purposes of the relevant regulation and, given the district’s failure to defend its evaluation of the student, the parents are entitled to reimbursement of the costs of the December 2022 neuropsychological evaluation.

Regarding the parents’ request in their due process complaint notice that they be reimbursed for the October 2020 OT evaluation, the district argues that the parents never disagreed with a district OT evaluation that would require the district to provide or fund an IEE at public expense.

The SRO agreed but said that this “does not end the inquiry as the parents’” due process complaint notice demonstrates that the parents “did not request an OT IEE through the statutory framework but requested reimbursement for all costs incurred in obtaining OT services for the student due to the district’s child find violations”. The SRO also pointed out that such relief had been previously granted in at least one other SRO decision. Citing to the fact that the district did not point “to anything in the hearing record that indicates reimbursement for the OT evaluation was not an appropriate remedy to make up for the district’s child find violation during the 202122 school year, the IHO determined that the district’s argument “must fail” and found that the IHO’s determination that the parents are entitled to reimbursement for the 2021 OT evaluation would not be disturbed.

Application of a Student with a Disability, Appeal No. 23-102 at pp. 21-23 (July 31, 2023) Dispute: Whether a request for an IEE is properly made in the first instance as part of a due process complaint notice?

Conclusion: The SRO overruled the IHO and found that a request for an IEE may not be made in the first instance as part of a due process complaint notice.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

“The IDEA and State and federal regulations guarantee parents the right to obtain an IEE, which is defined by State regulation as an individual evaluation of a student with a disability or a student thought to have a disability conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student. Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at private expense. If a parent requests an IEE at public expense the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its 370

evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If a school district’s evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense. Additionally, both federal and State regulations provide that a parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.”

The SRO explained that “[i]n this case, the parents made their request for an IEE in the due process complaint notice in the first instance”. The SRO pointed out that “[i]n past decisions, SROs, including [himself], have permitted a parent to request a district-funded IEE in a due process complaint notice in the first instance”. The SRO wrote that “[t]he statute clearly indicates that a district is required to either grant the IEE at public expense or initiate due process to defend its own evaluation of the student, but a district need only do so without unnecessary delay”. The SRO continued that “[t]he [IEE process] envisions that a district has the opportunity to engage with the parent on the request for an IEE at public expense outside of the due process litigation …” With respect to all of this, the SRO further explained that the Second Circuit has observed, that “at no point does a parent need to file a due process complaint notice to obtain an IEE at public expense” At the same time, the SRO referenced the same Second Circuit authority that it is within a parent’s discretion to file a due process complaint notice if a district “unnecessarily withheld a requested IEE or failed to file its own due process complaint to defend its challenged evaluation as appropriate” See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 169 (2d Cir. 2020).

The SRO indicated that upon reflection, thought, and consideration, it was appropriate to change his “previous approach of allowing the parent to initially disagree with a district evaluation and request an IEE in a due process complaint notice (without attempting to raise such disagreement with the district first)” should be changed. The SRO also wrote that in this case it appeared, under the circumstances, as though the parents’ request for an IEE was “an afterthought”. This was “an improper use of the due process procedures” the SRO said.

The above being the case, the SRO found that “that the IHO erred in his decision to grant the parents’ requests for an IEE at public expense that was raised for the first time in the due process complaint notice”. However, the SRO said that if the parents still wished for the student to receive an IEE they could “request that the district conduct such an evaluation”.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Whether the parent requested an IEE using the proper procedures.

Conclusion: The SRO upheld the IHO in relevant part and concluded that the parent did not properly raise the request for an IEE. Basis of the SRO’s Decision:

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The parent included a request for an IEE in the due process complaint notice. Among other reasons, the IHO denied the request because of that reason and also because the parent did not seek an IEE prior to the due process complaint notice.

The SRO determined that the IHO’s conclusion was correct. More particularly, the SRO concluded that while he had not finished his thinking about the matter and pointed to an exception that was not relevant to the matter here, a request for an IEE should not be first raised in a due process complaint notice and to do so “was not the process contemplated by the IDEA and its implementing regulations”. The SRO concluded “that the parent delayed the IEE request in favor of including it in the due process complaint notice or including the request for an IEE in the due process complaint notice as an afterthought”. This, the SRO said, was an “improper use of the due process procedures” The SRO pointed out that “the parent faults the district in its request for review for failing to initiate an impartial hearing to defend its evaluations, but [the] district cannot be faulted for that because [1] there is no evidence the parent requested an IEE or articulated any disagreement with a district evaluation prior to seeking the IEE in the due process complaint notice, [2] he did not identify which district evaluation he disagreed with, and [3] did not articulate the statement of disagreement during the impartial hearing”. The SRO said that the parent’s failure to follow the process was “further compounded” as the parent framed the issue in the due process complaint notice in terms of “a procedural violation underlying a denial of a FAPE instead of as a separate articulation of disagreement with a district evaluation underlying a request for an IEE”.

With the above in mind, the SRO upheld the determination of the IHO in relevant part.

Finally, the SRO’s decision advised the parent that “if the parent still desires that the student undergo [an IEE] he should request that the district conduct such evaluation” and follow the procedures set forth in the IDEA subsequent to that.

B.D. v Eldred Cent. Sch. Dist., 22-CV-03637 (PMH), 2023 WL 3025308 (S.D.N.Y. Apr. 20, 2023) Dispute: Whether the patents were entitled to an independent educational evaluation at public expense.

Conclusion: The Court held that the parents were not entitled to an independent educational evaluation at public expense as there was no district evaluation to disagree with.

Basis of the Court’s Decision: The student in this case has been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyper-Activity Disorder, reading and writing impairments, and chronic kidney disease. The student is eligible for special education programs and services as a student with a disability and in particular a student with another health impairment.

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The student requested reimbursement in the amount of $6,800 for a private neuropsychological evaluation. Both the IHO and the SRO concluded that the parent did not have a right to an individual educational evaluation (IEE) at public expense. More specifically, the SRO determined that the parents were not entitled to a private evaluation at public expense because parents “are only entitled to a private evaluation at public expense after the [d]istrict conducts an evaluation with which they disagree, and because [in this case] no [d]istrict evaluation was conducted prior to the private evaluation”.

The Court agreed and cited to D.D. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d 2020) and 34 CFR 300.502(b)(1) for the proposition that “a parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”. The Court pointed out that in this case, the parents “refused to consent to a [d]istrict neuropsychological evaluation”. Again citing to Trumbull, the Court explained that “[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short”. The Court continued that “[t]here is simply no entitlement to a private evaluation before a public one has been taken because [the parents] cannot know whether the public evaluation falls short before it even exists”. Further, the parents had argued “that they contracted for the private evaluation because they did not like the psychologist that the [d]istrict proposed for the public evaluation”. Regarding this, the Court said that the parents “cite to no authority – and the Court is unaware of any – for the proposition that such a disagreement would exempt them from first receiving a public evaluation”.

Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) Dispute: Whether the district should pay for an Independent educational evaluation for the student.

Conclusion: The parties agree that an Independent Educational Evaluation (IEE) should be provided to the student and the SRO ordered the district to allow the parent the opportunity to demonstrate that “unique circumstances” justify an IEE that did not fall within the district’s cost containment criteria.

Basis of the SRO’s Decision: In this case, the student had a “diagnosis of autism and a severe intellectual disability”. Regarding this, student evaluations indicated that the student’s intellectual abilities were at the first percentile and that such might be an “overestimate”. The student’s score on the Vineland-3 comprehensive interview form given to the student’s parent to assess the student’s adaptive functioning also resulted in a score below the first percentile. The student exhibited significant sensory needs and presented with “significant language delays, pervasive difficulties with communication and comprehension”, and accompanying attention and sensory deficits.

In December 2020, the parent advised the CSE that “the student had not been recently evaluated and he was concerned that there was insufficient information to understand [the student’s] 373

needs and current functioning levels”. According to the parent, he requested a reevaluation.

Thereafter and on January 26, 2021, the parent “requested that the district conduct a neuropsychological evaluation”. As part of the student’s August 18, 2021, due process complaint notice, the parent also requested an IEE. Finally, in a letter dated February 8, 2022, “the parents claimed that the student was evaluated by an outside provider in December 2019, but indicated they believed the student’s needs had changed and an updated evaluation was required”. “The parents requested a neuropsychological evaluation and any other indicated testing”.

In response to the parents’ February 8, 2022, request, “the district sent the parents a prior written notice … for a revaluation”. “The district determined that the student needed a neuropsychological evaluation as part of the reevaluation”. As part of the documentation provided to the parents by the district, the district provided the parents with its “maximum allowable [district] rates for assessments”, which for a neuropsychological evaluation was $1,000.

On March 5, 2022, the parent “requested an authorization form requesting funding of a neuropsychological evaluation up to $5,000” based on their hearing that such evaluations can cost between $4,000 to n $6,000.

“Regarding the issue of the maximum reimbursement rate, when a parent requests an IEE, the district must provide the parent with a list of independent evaluators from whom the parent can obtain an IEE, as well as the district’s criteria applicable to IEEs should the parents wish to obtain evaluations from individuals who are not on the list”. “Additionally, a school district must not restrict the providers of an IEE to a set list and must give parents the opportunity to show that circumstances require choosing an evaluator who does not meet school district criteria”. “If the district has a policy regarding reimbursement rates for IEEs, it may apply such policy to the amounts it reimburses the parent for the private evaluations”. “The district may also establish maximum allowable charges for specific tests to avoid unreasonable charges for IEEs”. “When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district’s cost criteria”.

Here, the SRO concluded that while the parents submitted a request for an IEE and that while the district thereafter consented to same, “the parents did not provide adequate justification for why the district’s cost containment policy should not apply”. In particular, the SRO determined that “the parents had failed to identify an evaluator to conduct an evaluation of the student and have not adequately identified the cost of such evaluation”. The SRO also said that “[t]he parents’ assertion that neuropsychological evaluations cost between $4,000 and $6,000 is not supported by the hearing record”.

The SRO pointed out that in this case, “the district agreed to the neuropsychological evaluation”.

The SRO advised that “[a]s the parents have not yet obtained an IEE, there is no harm in requiring that the IEE conform to the district’s criteria”. “Therefore”, the SRO concluded that “the parents 374

are entitled to reimbursement for an IEE subject to the district’s criteria and, in the event the parents wish to obtain an evaluation from an evaluator whose fee is greater than permitted by the district’s cost containment criteria, the district must provide the parents with an opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district’s cost containment criteria”.

Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022) Dispute: Should the costs of the parent’s evaluation be reimbursed by the district.

Conclusion: Contrary to the IHO’s conclusion, the SRO found that the parents should be reimbursed for the costs of their evaluation.

Basis of the SRO’s Decision: “The IDEA and State and federal regulations guarantee parents the right to obtain an [Independent Educational Evaluation] IEE, which is defined by State regulation as ‘an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student’. Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense”.

“If a parent requests and IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If a school district’s evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense.

Additionally, both federal and State regulations provide that ‘a parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees’” Moreover, “[i]n order for an IEE to be provided at public expense, State and federal regulations only require that ‘the parent disagrees with an evaluation obtained by the public agency’; the regulations do not speak to how a parent must manifest this disagreement to the district. In addition, federal guidance suggests that a district ‘may not require that a parent provide notification of the parent’s intent to obtain an IEE at public expense as a precondition for public payment for an IEE’ and that ‘a parent may obtain an IEE without providing prior notice to the public agency’”.

In this case, the parents wrote a letter to the district. “The parents informed the district that they paid $3,000 for a neurophysiological evaluation ‘to have [the student] properly assessed and finally diagnosed with specific learning impairments, ADHD, and a language disorder’” and at the same time “sought reimbursement” for the costs of the evaluation. The parents stated that they

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did not believe they should have had to obtain such [evaluative] information as the district evaluated the student, but the district’s evaluations failed to reveal similar findings”.

In this case, the district did not request an impartial hearing to defend its evaluation.

The IHO denied the parents’ request for an IEE because there “was no evidence in the hearing record that the parents requested an IEE prior to obtaining it”.

Consistent with federal and state regulations and guidance, the SRO concluded that “the parents effectively informed the district that they had an independent evaluation of the student conducted because they were not satisfied that the district evaluations had properly assessed the nature of [the student’s] learning needs”. The SRO found that “[g]iven the lack of any requirement to express disagreement through formal words or phrases[,] as long as the parents’ dissatisfaction with the district’s assessment of the student is conveyed to the district in order to give the district an opportunity to defend its evaluation …” the parents’ letter “suffices for purposes” of the “relevant regulations and, given the district’s failure to defend its evaluation of the student, the parents are entitled to reimbursement of the costs of the neurological evaluation” 68 Application of the Bd. of Educ., Appeal No 22-047 (June 30, 2022) Dispute: Whether the district should pay for the student’s private neuropsychological evaluation.

Conclusion: The State Review Officer (SRO) upheld the decision of the IHO that the district should pay the cost of the student’s private neuropsychological evaluation.

Basis of the SRO’s Decision: This case concerns the appropriateness of a reevaluation in the context of an Independent Educational Evaluation at public expense (IEE). “Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense”.

Further, “if a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria”.

Here, the district conducted a reevaluation of the student. The reevaluation included an updated social history, a PT reevaluation, and a psychological reevaluation, the latter which included the Kaufman Assessment Battery for Children-Second Edition and a classroom observation. Prior to the completion of the reevaluation, the “the student received diagnoses of craniosynostosis and ERF gene mutation”.

As indicated above, the SRO’s decision also references the relevant evaluation as a neuropsychological evaluation. It is unclear from the text of the decision whether the parents requested reimbursement for the costs of a neurological evaluation or for the costs of a neurophysiological evaluation.

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“Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student’s IEP (20 U.S.C. 1414[b][2][A]; 34 CFR 300.304[b][1][ii])…”. Further, “[s]tate regulations require that, as part of a reevaluation, the CSE, with input from the student’s parents, should review existing evaluation data and on the basis of that review, identify what additional data is needed to determine continuing eligibility for special education programs and services and present levels of academic performance and the related developmental needs of the student, and should administer tests and other evaluative materials to gather the data needed (8 NYCRR 200.4[b][4], [5][i]-[iii])”.

During the course of the reevaluation here, a private physician recommended that the student undergo a neuropsychological evaluation. The parents subsequently advised the district of this recommendation. Among other things, the completed neurophysical evaluation “offered the student a diagnosis of a specific learning disorder with impairment in reading (dyslexia)”. In a follow-up CSE meeting, the district changed the student’s disability category to “learning disabled with dyslexia”. At least over the course of the student’s reevaluation, the student’s father “asserted that the parents informed the CSE of the student’s craniosynostosis diagnosis constantly and with every teacher and provider and conveyed to the district that there was a significant family history of dyslexia at numerous CSE meetings and in numerous history discussions since the student was in kindergarten and every year at every CSE meeting”.

Additionally, “the parents discussed their concerns about the student’s progress on his reading and his writing … with his teachers, including his fourth-grade teacher in addition to their concerns about the student’s performance in math”. “[T]he parents disagreed with the scope of the district’s evaluations that had been conducted and were being conducted as not sufficient to provide a diagnosis and requested an independent neuropsychological evaluation of the student at public expense”.

The district subsequently “requested an impartial hearing to establish that its evaluations were appropriate, asserting that the parents’ request for an IEE at public expense should be denied”.

Upon review, “the IHO found that the district’s evaluations were not sufficiently comprehensive and ordered the district to reimburse the parents for the cost of the independent neuropsychological evaluation the parents had obtained”. Regarding the IHO’s finding that the district’s evaluations were “insufficiently comprehensive”, the IHO concluded that this was “because collectively they had failed to produce data to determine the student’s present levels of academic achievement, failed to determine the student’s educational progress and achievement, failed to inquire into the student’s levels of knowledge and development in subject and skill areas, and failed to obtain accurate information on what the student knew and could do academically”.

Upon its review, the State Review Officer (SRO) found that “[o]verall, while the hearing record shows that the (sic) academics were not the student’s most prominent area of need, there is 377

insufficient basis in the hearing record to disturb the IHO’s conclusion that the district’s evaluations were not sufficiently comprehensive to assess the student in all areas of suspected disability given the lack of academic testing”. The SRO pointed to the fact that there was “evidence in the hearing record that the parents communicated information about the diagnoses that the student had received since his initial evaluation and the possible ramifications of the identified syndromes, as well as information about the family’s history, the fact that the student received support from a tutor, concerns about the student’s performance in school and the recommendation of the student’s medical team that be undergo a neuropsychological evaluation”.

The SRO further pointed out, among other things, that “the district did not offer into evidence documentation about the student’s classroom-based performance”, that the psychological evaluation in relevant part “did not speak to the student’s academic performance on the mathematics worksheet he completed during the observation or include any quantitative assessment of the student’s academic skills or progress”.

Additionally, the SRO explained that it had been “four years since the student’s last psychological evaluation, which had been conducted as part of his initial evaluation…”. Regarding this, the SRO pointed out that at that time, “the student was four months into kindergarten and his academic testing …measured early academic skills…”. The SRO concluded that “[c]onsidering this and given the student’s ERF gene mutation and craniosynostosis diagnoses, his family history of dyslexia and the parent’s concerns there is insufficient basis in the hearing record to disturb the IHO’s finding that the district had a responsibility to ensure that there was sufficient data on all areas of suspected disability, including the student’s academic ability, as part of the district’s reevaluation of the student for the CSE to determine both accurate present levels of performance and eligibility for special education programs and services.

As a result of all of the above, the SRO upheld the IHO’s order that the district pay the cost of the student’s private neuropsychological evaluation.

D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: “The issue is whether an FBA is an evaluation with which a parent may disagree to obtain an IEE at public expense.”

Conclusion: In an issue of first impression, the Court of Appeals found that an FBA is NOT an evaluation that triggers a Parent’s right to an IEE at public expense.

Basis of the Court of Appeals’ Decision: The Court of Appeals based its decision on its conclusion that an evaluation under IDEA was a “comprehensive, multi-focused assessment of ALL areas of the child’s disability” (emphasis supplied) and was limited to an initial evaluation and a reevaluation which was consistent with the IDEA’s statutory and regulatory language as well as “the purpose of the publicly funded IEE right”. The Court concluded that an FBA was simply an” assessment tool” or “evaluation material”— "a purposefully targeted examination of the child’s behavior” – "that a school can use in conducting an evaluation”. The Court further concluded 378

that if the parents were not satisfied with the evaluations provide by the district to date, they could have requested another reevaluation and if they disagreed with that, they could have then requested a comprehensive reevaluation at public expense. The Court of Appeals also advised that neither the statue nor the regulations precluded a parent from challenging an evaluation on the basis that its scope was too limited.

INDIVIDUALIZED EDUCATION PROGRAM (IEP) AMENDMENT Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., No. 19-270, -- F.3d – 2021 WL 800579 (2d Cir. Mar. 3, 2021) Dispute: Whether a district may unilaterally amend a student’s IEP during the course of the 30day resolution period after the filing of a due process complaint.

Conclusion: In a matter of first impression, the appeals court determined that a district may not unilaterally amend a student’s IEP during the course of the 30-day resolution period the filing of a due process complaint but must do so by the end of the 10-day notice requirement provided by the statute for the parent to set forth their concerns and advise the district that they intend to enroll the student in a unilateral placement.

Basis of the Appeals Court’s Decision: In this case, the CSE convened on June 9, 2016 to develop the student’s IEP for her seventh-grade school year. Albeit the district contended that at that meeting the CSE recommended a 15:1+1, the Court indicated that it was unclear whether the CSE recommended such a class or a 12:1+1 class. At the end of June, a parent of the student visited the middle school that the student would attend and was advised by staff there that because the student would be in seventh grade, she would be in a 15:1+1 class. On August 17, the parents provided the district with a 10-day notice. Among other things, the notice advised that the district had not yet provided an IEP and that in any event, the district “failed to recommend a small class.” The 10-day notice also advised the district that the parent intended to enroll the student in a unilateral placement. Late in August and a day or so after the expiration of the 10-day notice period the district issued a written IEP which advised that the student would be placed in a 12:1+1 class. The parents filed a due process complaint dated September 26. The parents and representatives of the district met for a reconciliation meeting on October 7. At this meeting, school staff advised that the August IEP had mistakenly advised that the student would be placed in a 12:1+1 class instead of a 15:1+1 class. The district repeated this in a letter dated October 21, 2016. Subsequent to the expiration of the resolution period the district unilaterally issued a revised IEP dated September 26, setting forth that the student would be attending 15:1+1 classes. An amended due process complaint was thereafter filed to address the October IEP. Among other things, the amended complaint advised that while the parent had been told that the student would be placed in a 15:1+1 class the IEP advised that the student would be

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placed in a 12:1+1 class and that therefore the student had been recommended a placement that the district was unable to provide which constituted a denial of a FAPE. Consistent with specific language in R.E. v. New York City Department of Education, 694 F.3d 167, 188 (2d Cir 2012),69 the SRO and the District Court assumed that the district could unilaterally correct an IEP before the end of the resolution period. Upon review, the appeals court, however, determined that such language was “non-binding dictum”. Thereafter and in addressing the question of whether a district may unilaterally amend an IEP during the reconciliation period, the Appeals Court determined “that the text and structure of the IDEA necessarily foreclosed this.

With respect to the text of the statute the appeals court pointed out that the IDEA “gives no evidence” to suggest that a school district has the right to unilaterally amend the IEP during the resolution period. Further, the IDEA provides “detailed procedures” to amend an IEP; none of which include the unilateral amendment of an IEP during the resolution period. Finally, the appeals court said that the IDEA’s “description of due process hearings conflicts with the notion of a school district’s unilateral right to make IEP amendments during the resolution period”. With respect to the structure of the IDEA, the appeals court held that it was the 10-day notice period that provided the district with the opportunity to offer changes in an IEP that would address the parent’s objections to it and that this period was prior to a parent’s enrollment of the child in a private school and the filing of a due process complaint.

ASSISTIVE TECHNOLOGY Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: assistive technology, deference to SRO Dispute: Did the student require the use of assistive technology.

Conclusion: The District Court gave deference to the SRO’s conclusion that the student did not require assistive technology.

Key Take Away: A student does not have a right to assistive technology unless that is necessary for the student to receive a FAPE. Here, the facts at the hearing did not show that the student needed assistive technology to receive a FAPE. Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the student required assistive technology. The SRO disagreed. The SRO concluded that the student did not require assistive technology.

If, at the end of the resolution period, the parents feel their concerns have not been adequately addressed and the amended IEP still fails to provide a FAPE, they can continue with the due process proceeding and seek reimbursement. The adequacy of the IEP will then be judged by its content wat the close of the resolution period.

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The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the student needed assistive technology. The Magistrate disagreed and determined to give deference (to rely on) to the SRO’s determination that the student did not need assistive technology.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have deferred to the SRO’s decision. The Judge pointed out that assistive technology “will almost always be beneficial to a student” but that it is only required to be provided “if the technology is necessary”. The Judge also pointed out that the parent did not name what specific assistive technology the IEP should have recommended. The Judge said that it was therefore impossible to say that assistive technology was necessary for the student to receive a FAPE. The Judge also pointed out that while the CSE was aware that the student used certain assistive technology to communicate, this did not make the CSE’s decision not to recommend assistive technology a mistake. The Judge said that the impartial hearing showed that the CSE had concerns about the student’s ability “to fully understand” how to use the assistive technology device and “the appropriateness of such services”. The Judge pointed out that the parent did not show any error in this testimony and that therefore the SRO’s decision was entitled to deference.

L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) Dispute: Should the Court defer to the SRO with respect to the appropriateness of the district’s AT recommendations.

Conclusion: Based on the circumstances, the Court concluded that the SRO decision’s AT recommendations merited deference.

Basis of the Court’s Decision: In this case, the student has been diagnosed with spastic diplegic cerebral palsy and Attention Deficit/Hyperactivity Disorder. The student has speech-language deficits that make “it difficult for his verbal communication to be understood by an unfamiliar listener”. During the 2017-18, 2018-19, and 2019-20 school years, the student was placed in a BOCES program’s “8:1+2 social communication special class, and qualified for extended school year services”. Because of the student’s language deficits, during this period, the CSE consistently recommended assistive technology (AT) for the student as well as an alternative augmentative communication (AAC) device. Over the course of the student’s attendance at the BOCES program, the student used an iPad with different applications to assist in his communication. The applications on the student’s iPad were different but the student was able to use each of the applications with differing levels of success. While the student’s IEP recommended that the student use his AT at home, his ability to do so was “problematic” due to the student’s deletion of applications there and because the 381

student did not always bring the AT device back to school. The student’s IEPs did not specifically recommend parent training and education but had general requirements for that and over the course of the period, the district provided opportunities for parent training and education relative to AT but the parent did not take advantage of this.

Among other things, the parent argued that the SRO erred with respect to the evaluation of student needs relating to AT and ACC devices. More specifically, the parent argued before the Court “that the SRO erred in determining that (1) the failure of [the student] to bring his AT device home … was not a significant deviation from the IEP; (2) the district did not deny a FAPE by providing an inappropriate device despite evidence of device abandonment, 70 and (3) the lack of parental AT training was a minor error”.

With respect to whether, during relevant time periods, the district’s “failure to allow [the student] to bring his device home” deprived the student of an educational benefit, the Court pointed out that the argument was “summarily” made and “[did] not cite to any evidence showing that keeping the device at school deprived [the student] of an educational benefit”.

Further, the Court determined that “[t]he SRO’s finding that the lack of a home AT option was de minimis was supported by the record.” The Court pointed out that the student’s “IEPs and assessment of goals demonstrate[d] that despite not having access to a device at home consistently, he still progressed”. Relative to this, the Court pointed out that these goals included many if not all of the student’s speech-language goals. The Court also pointed out that “while having devices in both places would have been ideal, [the student] was plainly able to make progress appropriate to his circumstances despite having the iPad only at school”. The Court found that because of this, there was “not such a material deviation from the student’s IEP that he was denied a FAPE”. See Y.F. v. New York City Dep’t of Educ., No. 15-CV-6322, 2015 WL 4622500, at *6 (S.D.N.Y. July 31, 2015), aff’d, 659 F. App’x 3 (2d Cir. 2016).

Relating to the parent’s argument that the SRO erred in determining that “the district did not deny [the student] a FAPE by providing an inappropriate device despite evidence of device abandonment”, the Court found that the determination to use one application over another “was sound”. It pointed out that “[t]he IDEA does not require a school district to provide a specific program or employ a specific methodology in providing for the education of children with disabilities”. See H.C. v. Katonah-Lewisboro Union Free Sch. Dist., No. 09-CV-10563, 2012 WL 2708394, at *16 (S.D.N.Y. May 24, 2012), aff’d sub nom. H.C. ex rel M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F. App’x 64 (2d 2013). The key, the Court said, was whether “the device employed is reasonably calculated, to allow the child to receive educational benefits”. See H.C., 528 F. App’x at 67. Relative to this, the Court said that the parent “provides no evidence to suggest that [the ACC] did not function or was otherwise inadequate” only that she “preferred another application”. This is ”not enough” the Court said “especially” since the student used the district recommended application “independently and was very good at it”. “Given that the Relevant testimony was that “device abandonment occurred “when an [AT] device is not the right fit or the user does not have the right training so they just give up.

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record supports the view that [the student] progressed and achieved his IEP goals while using [the district recommended application] the Court said that it was “clear that [the districtrecommended application] conferred an educational benefit on [the student], and therefore the SRO did not err in finding that the district provided [the student] with a FAPE as to his AT needs”.

The Court reiterated that preference was not critical and that the fact that the student’s “experts” “disagreed as to which application would be better does not suggest that the Court should not defer to the SRO’s conclusion that [] the [parent’s] preferred application was not necessary to provide [the student] with a FAPE”. The Court said that this type of decision was “precisely the kind that courts are ill equipped to make”. Regarding the claim that “device abandonment” was “not sufficiently consider[ed]”, the Court said that this contention was “belied by the record”. Here, the SRO took the relevant testimony “under consideration” and found “that the record demonstrates that the student used the iPad and the applications thereon with success”. The Court therefore found that there was “no evidence in the record” that the student experienced device abandonment.

Relative to the question of whether the SRO erred when concluding that “the lack of parental AT training was a minor error” the Court said that the parent’s “contention” that this was the case was “unavailing”. “The SRO correctly noted [the Court said] that the Second Circuit has held that though the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of FAPE, in the ordinary case, that failure, standing alone, is not sufficient to warrant a finding that a FAPE has been denied.” See R.E. v.

New York City Dep’t of Educ., 694 F.3d 167, 191 (2d Cir. 2012). Consistent with this, the Court said that “the [d]istrict’s failure to include AT training for the parents as part of [the student’s] IEPs did not rise to the level of a denial of a FAPE.” The Court also pointed out that, [“as the SRO noted”], while the student’s IEPs did not include recommendations for [parent] AT training specifically”, the IEPs for two of the three years “called for parent training generally, and the parents were repeatedly offered training and counseling [by the BOCES school], which could have included AT training, but they never tried to take [the BOCES school] up on the offer, even after learning went remote”. The Court concluded that it had no basis “to disturb the SRO’s conclusion that the effect of the lack of parental training [regarding AT] in the IEP was minimal”.

GOALS AND OBJECTIVES Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – goals and objectives, deference to SRO Dispute: Whether the IEP sets forth appropriate goals and objectives.

Conclusion: The District Court deferred to the SRO’s conclusion that the IEP’s goals and objectives were adequate.

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Key Take Away: The parent should remember that goals and objectives are taken in their entirety. Even if one goal might be unrealistic if other goals and short-term objectives address the needs of the student, a FAPE is provided.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that the IEP did not include adequate goals and objectives. The SRO disagreed and concluded that the IEP’s goals and objectives were adequate.

The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the IEP goals and objectives were inadequate. The Magistrate concluded that the SRO’s decision that the IEP’s goals and objectives were adequate should be given “deference”.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that the Magistrate should not have given deference to the SRO’s conclusion. The parent pointed out that one of the goals was admittedly unrealistic. The Judge said that the parent did not explain why one “farfetched” goal made the other goals insufficient or denied the student a FAPE. The Judge pointed to Court cases which concluded that the adequacy of goals is “precisely” the kind of issue that the IDEA requires that deference be given to state administrative officials. The Judge further pointed out that even when certain goals are “overbroad” or unrealistic Courts have found an IEP to be satisfactory where short term objectives are sufficiently detailed.

The Judge denied the parent’s objection to the Magistrate’s conclusion.

Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) Dispute: Whether the district’s related services goals and objectives were appropriate.

Conclusion: The SRO determined that the district’s goals and objectives for the student’s related services were procedurally inadequate.

Basis of the SRO’s Decision: In this case, the student had a “diagnosis of autism and a severe intellectual disability”. Regarding this, student evaluations indicated that the student’s intellectual abilities were at the first percentile and that such might be an “overestimate”. The student’s score on the Vineland-3 comprehensive interview form given to the student’s parent to assess the student’s adaptive functioning also resulted in a score below the first percentile. The student exhibited significant sensory needs and presented with “significant language delays, pervasive difficulties with communication and comprehension”, and accompanying attention and sensory deficits.

With respect to the goals and objectives of the student’s IEP, the SRO pointed out that since the student participated in “alternative assessment” the district had an obligation to provide “[s]hort 384

term instructional objectives or benchmarks” – “measurable intermediate steps between the student’s present levels of performance and the measurable annual goal”. Regarding this, the SRO pointed out that the IEP did not include short term objectives for any of the recommended related services. However, the SRO concluded that this “was a procedural error” and pointed out that “a procedural violation only results in a denial of FAPE if the procedural inadequacy (a) impeded the student’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (3) caused a deprivation of educational benefits”. The SRO indicated that this procedural violation would “be considered along with the substantive appropriateness of the December 2020 IEP recommendations”.

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the IEP include an appropriate set of annual goals?

Conclusion: The SRO concluded that the IEP’s annual goals had some defects but that such was insufficient to result in a denial of a FAPE. Basis of the SRO’s Decision: “An IEP must include a written statement of measurable annual goals including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general educational curriculum; and meet each of the student’s other educational needs that result from the student’s disability”. “Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goals during the period beginning with placement and ending with the next scheduled review by the committee”.

“The student’s … IEP featured three annual goals to address the student’s needs in executive functioning and writing.” With respect to the student’s annual goals, the SRO advised that “the IDEA does not require that a district create a specific number of goals for each of a student’s deficits, and the failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the student’s areas of need”.

In this case, the SRO concluded that there was “merit…to the parents’ argument that the annual goals were lacking, particularly given the lack of focus of the student’s difficulty with storage and retrieval of information, despite the articulation of the student’s needs in the present levels of performance”. Further, the SRO also concluded that “the annual goal targeting the speed at which the student could write an essay did not seem to take into account whether an essay developed more quickly would be written with improved retrieval skills.

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Based on the above, the SRO found that “the annual goals had some defects; however, such deficiencies, without more, would not support a finding that the district denied the student a FAPE”.

Application of the Bd. Of Educ., Appeal No. 22-037 (June 9, 2022) Dispute: Whether the development of the student’s IEP goals considered parental input and whether the IEP included a sufficient annual goal to address the student’s feeding needs.

Conclusion: The SRO reversed the IHO’s conclusions that the IEP did not consider parental participation in the development of annual goals and that the IEP did not include a sufficient annual goal relating to feeding.

Basis of the SRO’s Decision: “An IEP must include a written statement of measurable annual goals including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general educational curriculum; and meet each of the student’s other educational needs that result from the student’s disability”. “Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goals during the period beginning with placement and ending with the next scheduled review by the committee”.

The IHO held that the CSE “did not consider the parent’s input in developing the student’s annual goals and that the … CSE did not include a sufficient annual goal to address the student’s needs relating to feeding”.

With respect to the question of parental input and the development of the annual goals, the IHO relied on a series of emails between the principal of the student’s pendency placement and the district’s supervisor of case management and nonpublic school services. The SRO concluded that the IHO’s finding was “inconsistent with the testimony and reported purpose of the emails”. In particular, the SRO found that “these email discussions solely pertained to pendency services and were not pertinent to an analysis regarding parental input as to the proposed annual goals”.

As it relates to the sufficiency of the student’s annual goal relating to feeding, the SRO in part extensively analyzed the student’s feeding needs and relevant present levels of performance and indicated that these were supported by the record. With respect to the enunciated goal relating to feeding – that of the development of a “chewing pattern using a chewy tube”, the record indicated that this skill “had not yet emerged” and that the feeding therapist had developed an appropriate feeding goal which was “to begin to establish a chewing pattern”. The feeding therapist indicated that this was a “foundational skill that was necessary and potentially obtainable for the student and no other goal can really be worked on or addressed until we start to get that pattern.” With respect to the overall program, the feeding therapist recommended a 30-minute in-classroom weekly feeding consultation and three, 30-minute sessions per week of speech-language therapy.

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All in all, the SRO concluded that notwithstanding the IHO’s findings to the contrary, “the hearing record shows that the CSE recommended a feeding goal that was consistent with the student’s needs” and that the “IEP appropriately addressed the student’s feeding needs”.

DEVELOPMENT Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the CSE should have relied on an IHO-determined IEP regarding the prior school year for the development of an IEP for the subsequent school year.

Conclusion: The Court held that the IHO-determined previous year’s IEP was not binding on the subsequent year’s IEP. Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

In this case, an IHO issued a decision relative to the 2017-18 IEP a week after the CSE met for the 2018-19 school year. In the earlier proceeding, the district conceded that it did not offer the student a FAPE and the IHO ordered, among other things, changes to the student’s 2017-18 IEP. The parent then argued that the IHO-approved IEP “was the roadmap for the CSE going forward” and asserted that she had written the district to reconvene the CSE for the purpose of implementing the IHO’s earlier decision for the 2018-19 school year.

The Court initially pointed out that in colloquy between the IHO and the parent’s counsel, the parent agreed that arguments relative to the 2017-18 IEP had no bearing on arguments relative to be the 2018-19 IEP. Regarding the letter that the parent asserted that she had written and whether that should affect the IEP for the subsequent school year, the Court pointed out that “the evidence regarding whether the letter was sent is unsettled at best”. The Court also said that “[i]n any event, IEPs for a previous school year are not binding on the following school year”.

The Court concluded that the IHO and SRO “properly did not factor in [the IHO’s decision in the previous school year] in adjudicating [the parent’s] DPC as to [the subsequent school year] and that [the parent’s] reliance on that decision in this action is entirely misplaced”.

Application of a Student with a Disability, Appeal No. 23-102 at pp. 7-15 (July 31, 2023) Dispute: Whether the IEP was properly developed?

Conclusion: The IEP was not properly developed in that in relevant part decisions specifying what services were to be in the IEP were not made by the CPSE/CSE but by/in a separate district office.

Basis of the SRO’s Decision: 387

In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

The parent requested that the student receive full time 1:1 nursing services as a related service.

The CPSE and CSE did not include such services in their relevant IEPs. This was because the parents had not submitted the proper medical form to the district in order for it to investigate and determine, with information from the student’s pediatrician, whether or not the student’s IEP should include 1:1 nursing services. The IHO concluded that this procedure was not error and further that the absence of nursing services in the IEP was not a denial of a FAPE. “The parent’s main contention on appeal with respect to the IHO’s FAPE findings is that he incorrectly determined that the district’s failure to recommend a 1:1 nurse for the student did not rise to the level of a denial of FAPE”.

The SRO determined that the CPSE/CSEs “had sufficient information by which to consider whether the student required a 1:1 nurse”. The SRO also found that “[f]or each of the school years at issue, neither the CPSEs nor the CSE engaged in any meaningful discussion regarding the student’s need for a 1:1 nurse and improperly placed the burden to obtain medical forms on the parents.” Reference Omitted. “Instead, the evidence shows that the district has another team, individual or office that is not part of the CSE that actually decides whether this student’s IEPs [during the relevant school years] would include a 1:1 nurse”. 71 The SRO held that “[t]his is not the process called for under IDEA because [it] is the CPSE or CSE that is required to make the determination of which services should be placed on a student’s IEP and it is the district’s responsibility to ensure that the individuals who can make appropriate decisions are part of the CSE process”. The SRO continued that “[p]lacing the onus on the parents, rather than the district to pursue the further consultation with the district doctor and obtain the required medical forms is problematic since since the district may not delegate its responsibilities to the student under IDEA to the parents”. The SRO further wrote that “[t]he district members of the CPSEs and CSE in this case failed to appreciate that they were the entities responsible to determine whether the student needed a 1:1 nurse in order to receive a FAPE and recommend a 1:1 nurse if the student required one”.

This being the case, the SRO held that the “IHO erred in accepting the district’s explanation that a 1:1 nurse could not be placed on the IEP by the CPSE or CSE and that the parents were required to send documentation to another office for a later determination of whether the student required a 1:1 nurse” This, “especially where there was no evidence in this case that the CPSE or 71 Note here that the SRO advised that “the case bears considerable similarity to litigation that was brought against the district which complained of systemic policies that never required the Office of School Health or the Office of Pupil Transportation -- agencies critical to providing the services at issue in this action – to appear for IEP meetings”. See J.P. v. New York City Dep’t of Educ., 324 F. Supp. 3d 455, 464-65 (S.D.N.Y. 2018). The SRO here reported that the district defendant in that case “represented to the Court that the policy had been changed”; which the Court was “unwilling to accept”. Clearly for good reason.

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CSE’s were merely waiting to complete the student’s IEPs over the course of multiple meetings and that the IEPs in the record were merely draft documents awaiting further action.

EVALUATIONS Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the CSE had sufficient evaluative information to develop the student’s IEP. Conclusion: The Court held that the CSE had sufficient evaluative information to develop the student’s IEP. Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserts “that the CSE utilized a psychological evaluation dated March 20, 2015, which plaintiff admit[ed] technically complied with New York’s regulations, but nevertheless argues that the report did not provide the CSE with current evaluative information upon which an IEP should have been based”.

The Court pointed out that the SRO had “rejected these arguments” and that she found “that the CSE [had] reviewed sufficient information and evaluations of [the student] in creating the 201819 IEP”. In doing so, the SRO “credited the hearing testimony of the CSE’s psychology supervisor, who stated that the CSE also reviewed other, more current evaluations and that the CSE believed that they were sufficient”. The Court also pointed out that the IHO “found that the CSE had sufficient data from [the student’s private school] progress reports with present levels of performance and IEP as well as input from the [student’s private school] teacher and related services providers”. The Court advised that it would defer “to the SRO and IHO’s evaluation of the record and expert testimony and agree[d] that the CSE had sufficient current information when creating [the student’s] 2018-19 IEP”.

Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Whether the CSE had sufficient evaluative information to develop the student’s IEP. Conclusion: The Court upheld the SRO and found that the CSE had sufficient evaluative information to develop the student’s IEP. Basis of the Court’s Decision:

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The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage …, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

The plaintiff claimed that the district’s CSE relied “on only three evaluations and assessments” when developing the student’s IEP. The plaintiff further argued that the student should have received updated evaluations in speech-language therapy, occupational therapy, physical therapy, and vision therapy, as those reflected the services that the student required.

The IHO found that the CSE did not rely on “new” evaluations except for an updated social history.

The SRO reviewed the record, found that the plaintiff’s and the IHO’s claims regarding the number of evaluations were “factually erroneous”. Regarding this, the SRO found that, in fact, the CSE reviewed (1) a classroom evaluation, (2) a social history update, (3) a comprehensive teacher report, (4) a two-year-old psychoeducational evaluation, and (5) the student’s previous year’s IEP. The SRO further concluded that the CSE had sufficient evaluative information to develop the student’s IEP. Regarding the parent’s claim that the CSE did not review a more recent psychoeducational evaluation, the SRO concluded that it was the student who did not attend an appointment for the psychoeducational evaluation.

The Court advised that it had reviewed the record and that it agreed with the SRO that the CSE had sufficient evaluative information to develop the student’s IEP. The Court also agreed with the SRO’s conclusion that the plaintiff could not rely on the fact of the two-year-old psychoeducational evaluation as it was the student who had not appeared for that evaluation.

The Court thus indicated that it would defer to the SRO’s conclusion that the CSE had sufficient evaluative information to develop the student’s IEP.

Application of the Dep’t of Educ., Appeal No. 22-152 (Jan. 13. 2023) Dispute: Whether the IHO’s determination that the district did not base its IEP on sufficient evaluative information was correct and denied the student a FAPE. Conclusion: The SRO upheld the IHO’s determination that the district did not have sufficient evaluative information to develop the student’s IEP and that the district therefore denied the student a FAPE Basis of the SRO’s Decision: In this case, the April 2019 psychoeducational evaluation, which was prepared because of a reevaluation, in relevant part advised that because of the student’s behaviors, the evaluation “may not be a valid and reliable assessment of [the student’s] current level of cognitive and academic abilities”.

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The IHO cited to this and “concluded that the record did not support the district’s claims that it had sufficient evaluative information” based on the record before it and further “that the IEP was not developed based upon valid and reliable evaluations”.

The district admits that the statement in the psychoeducational evaluation but argues that the information otherwise in that report included much relevant evaluative information and that between that and the other information before the CSE, the CSE had sufficient evaluative information to develop an appropriate IEP. The SRO concluded that “rather than focusing on the limitation contained in the April 2019 psychoeducational evaluation, the parties and the IHO should have focused on whether the May 2020 CSE had sufficient evaluative information available from a variety of sources to develop the student’s IEP for the 2020-2021 school year”. With respect to this, the SRO concluded that “review of the evidence in the hearing record supports the IHO’s conclusion that the district lacked evaluative information regarding the student’s stutter and sensory and emotional regulation” The SRO pointed out that the relevant social history and psychoeducational evaluation “did not mention the student’s stutter or sensory and emotional regulation needs”. Further, while the CSE recommended that the student receive speech-language therapy, none of the annual goals related to that focused on the student’s stuttering. Additionally, the SRO concluded that the evidence in the record regarding the student’s stutter did not make it clear that the IEP addressed the student’s needs as it should have. Moreover, the SRO concluded that the evaluative information before the CSE did not “reflect evaluative information about the student’s sensory and emotional regulation”. Additionally, the SRO advised that the IEP contained only limited and insufficient information regarding the student’s “sensory and emotional regulation”. The SRO further pointed out that the while the IEP recommended OT for the student, the OT annual goals “appeared unrelated to any sensory regulation needs the student may have been exhibiting”.

With respect to the student’s emotional needs, the IEP recommended that the student receive counseling and included some counseling goals. However, the SRO said that “it [was] difficult to ascertain whether those goals appropriately addressed the student’s emotional regulation skills and needs, if any, without further evaluative information as to what the student’s needs in those areas were at the time of the CSE meeting”.

Based on the above, the SRO concluded that there was “insufficient information available in the hearing record to overturn the IHO’s determinations that the May 2020 CSE lacked sufficient information regarding the student’s sensory and emotional regulation or related to his stutter”72 and that therefore “the district denied the student a FAPE”.

The SRO decision pointed out that while referenced on occasion, the December 2019 private school progress report, which may have included relevant information regarding the student’s stutter and sensory and emotional regulation, was not included in the hearing record or provided to the SRO for review.

72

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O.A. v. Orcutt Union Sch. Dist., 2:21-cv-02026-RGK-MAA, 81 IDELR 109 (C.D.Cal. May 27, 2022) Dispute: Whether the District conducted evaluations that assessed the student in all areas of suspected disability and otherwise adequately evaluated the student.

Conclusion: The Court upheld the ALJ and determined that the District appropriately evaluated the student during his kindergarten year but did not do so during his first-grade year.

Basis of the Court’s Decision: Prior to offering a student special education services, a District must conduct a full and individual initial evaluation meant to ensure that the student receives an assessment in “all areas of suspected disability” See 20 U.S.C. Section 1414(a)(1)(A), 1414(b)(3)(B). Additionally, the IEP Team is to develop an IEP in consideration of, inter alia, the strengths of the child, the concerns of the parents, the results of the initial evaluation or most recent evaluation of the child, and the academic, developmental and functional needs of the child. See 20 U.S.C. 1414(d)(3). Further, in circumstances of a reevaluation, the student must also be evaluated in all areas of suspected disabilities. See 20 U.S.C. 1414(b)(3)(B).

In this case, prior to the beginning of the student’s kindergarten year, the student’s pediatrician referred the student to a psychologist to see if the student should be formally diagnosed for autism. The psychologist was unable to complete his analysis because of the student’s behavior.

The CSE met during the first part of the student’s kindergarten year. After the parent reached out, the district conducted a “Multidisciplinary Psychological Evaluation.” The district assessed the student for ADHD which was the primary issue identified in medical records and by District employees. As a result of this assessment the District, in an October 31, 2017 meeting, offered the student an IEP. The parent asserts that the district should have evaluated the student for autism. The ALJ found that the district was not on sufficient notice to have an obligation to assess the student for autism or its related symptoms. The Court upheld the ALJ’s findings. It found that the student’s medical records reflected that the student’s primary diagnosis and educational concern was ADHD. Further, as indicated, while the parent had consulted a psychologist to assess the student for autism prior to the beginning of the school year, the Court pointed out that the psychologist was unable to complete the autism assessment and did not qualify the student for autism services at that time. Additionally, the Court pointed to the fact that while the student was observed by District employees to have an inability to stay on task, the student could be redirected back, which, based on the record, indicated symptoms of ADHD and not autism.

The parent further asserts that the student should have been assessed for autism during the balance of his kindergarten year. The ALJ disagreed. The Court agreed with the ALJ. It reasoned that for all of the prior reasons plus the fact that throughout the student’s kindergarten year, District staff observed “continued progress” in the student’s education and also because the student had made several friends as he grew accustomed to the school environment there was 392

insufficient reason to suspect that the student had autism. The Court also pointed out that neither the student’s parents nor his teachers requested a reassessment for autism.

The parent also asserts that the student should have been assessed for autism during his firstgrade year. The ALJ agreed and the Court upheld that determination. Regarding this, the Court specifically pointed to the fact that by this time the student’s psychologist had provided the student with a formal diagnosis of autism prior to first grade and that, additionally, the parents had officially requested that the student be assessed for autism. The Court advised that these factors put the District on notice of the student’s autism.

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the CSE consider sufficient evaluative information?

Conclusion: The SRO reversed the hearing officer and concluded that the CSE did not consider sufficient evaluative information.

Basis of the SRO’s Decision: In this case, the district was conducting an initial evaluation to determine whether the student was eligible for special education as a student with a disability.

Upon review of the evaluative information, the district’s CSE determined that the student was eligible for special education. Regarding this, among other issues, the student’s needs included academic struggles in reading, language comprehension, and writing. More specifically, the student’s neuropsychological evaluators found that the student met the criteria for a specific learning disorder with impairment in reading, a specific learning disorder with impairment in written expression, and an attention-deficit/hyperactivity disorder (ADHD) predominantly inattentive presentation.

Upon review of the evaluative information considered by the district’s CSE, the SRO concluded that it was “unclear why the district representative chose not to conduct subtests to assess the student’s written expression, given his concession in testimony that among the reasons for the referral of the student for an evaluation was his writing … not matching up with his oral abilities, along with his time management, ability to complete assignments, and reading comprehension”.

Additionally, the SRO pointed out that “[t]he district representative could not recall if the CSE had a copy of the student’s report card at the meeting” and also concluded that “of note [was] the lack of information in the hearing record indicating that the CSE considered data demonstrating that, prior to or as part of the referral process, the student was provided appropriate instruction or data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of the student’s progress during instruction”.

The SRO found that “[i]n light of the foregoing, the evidence in the hearing record does not support the IHO’s conclusion that the CSE considered sufficient evaluative information”.

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The SRO pointed out that “the deficiencies in the evaluative information are a procedural violation and the degree to which the violation impeded the student’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits”.

Relative to this, the SRO concluded that based on this aforesaid deficiency as well as the district’s failure to show that the IEP’s recommendation for a SETSS program for the student was appropriate and that the district failed to meet its burden to show that the supports included in the IEP were sufficient to address the student’s social/emotional needs supports a finding that the district did not show that it offered the student a FAPE.

GROUPING Zayas v. Banks, 24-1076-cv, 2025 WL 1091225 (2d Cir. Apr. 8, 2025) Issue: individualized education program - grouping Dispute: was the student appropriately grouped with students of similar needs at the district’s recommended school Conclusion: The Second Circuit concluded that the District Court was correct in deciding that the student would not be grouped at the district’s recommended school with students of dissimilar needs.

Key Take Away: A parent’s claim that a student is grouped in a recommended district classroom with students of dissimilar needs must be made at the time of the parent’s placement decision and must not be “speculative”.

Reasoning: The student in this matter is eligible for special education as a child with multiple disabilities. The student is legally blind, nonambulatory, and non-verbal.

The CSE met in March 2021 and developed an IEP for the student for the 2021-2022 school year.

The CSE met again in August 2021. It changed the student’s classification and adjusted the student’s assistive technology recommendations. After the district notified the parents of the student’s District 75 assigned school, the parents re-enrolled the student at the private school that the student had been attending since March of 2020.

The parents submitted a due process complaint in October 2021. The complaint asserted that the district denied the student a FAPE because the district’s assigned school was not an appropriate placement for the student. The Impartial Hearing Officer (IHO) concluded that the district denied the student a FAPE, that the parents placed the student at an appropriate private school, and that equitable considerations supported a grant of tuition reimbursement to the parents.

The district appealed to a State Review Officer (SRO). In a 27-page decision, among other things, the SRO “explicitly considered [the parents’] procedural and substantive objections.” It also 394

“assessed with citations to the record”, the testimony of school psychologists, the assistant principal of the recommended school and the parents’ evaluator. With particular regard to the testimony of the parents’ evaluator that the student would be grouped with students with different needs at the recommended district school, the SRO found that this testimony was particularly unconvincing given that [the evaluator] did not conduct an observation of the proposed district classroom or of the student”. Neither did the evaluator testify based on any specific information about the student’s proposed classes and had not visited the school. The SRO concluded that the district had provided a FAPE to the student and reversed the decision of the IHO. The parents filed an appeal to the United States District Court for the Southern District of New York. Both parties asked the District Court to find in their favor. The parents asserted that the district’s recommended school was an inappropriate placement location because the student “could have been grouped in classes with students with needs significantly different from his”.

The District Court rejected this and said that the parents’ contentions amount to speculation. It concluded that the district provided the student with a FAPE and that therefore the parents were not entitled to reimbursement for costs associated with enrolling the student at the private school.

The parents requested that the District Court change its mind. The District Court did not do so.

The parents appealed the decision of the District Court to the United States Court of Appeals for the Second Circuit. The parents argued that the District Court erred regarding the appropriateness of the district’s recommended school.

The Court of Appeals did not agree. The Appeals Court first said that “[c]hallenges to a school district’s proposed placement school must be evaluated prospectively (i.e.., at the time of the parents’ placement decision) and cannot be based on mere speculation”. Further, the Appeals Court said that “speculation that the school will not adequately adhere to the IEP is not an appropriate basis to secure a unilateral placement. The Appeals Court said that the assistant principal of the recommended school testified that the school was “capable of fully implementing the IEP and that the student himself had not been inappropriately grouped as he had never attended the assigned school. The Appeals Court dismissed the private evaluator’s conclusion on the basis of the SRO’s criticisms and also pointed out that the private evaluator had not visited any Department 75 school in at least two years from the date of her report.

The Appeals Court agreed with the District Court that the claim that the student would be “inappropriately grouped amounted to speculation that the recommended school would not have properly implemented the student’s IEP”.

Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024) Issue: IEP -- Grouping

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Dispute: Was the student inappropriately “grouped” with other students in the assigned classroom.

Conclusion: The Court of Appeals concluded that the district court correctly determined that the parent’s claim that the student was inappropriately grouped was “mere speculation” and should therefore not be considered.

Key Take Away: In order for a parent to show that a student was inappropriately grouped, the student must have attended the class in question.

Reasoning: The parent claimed that the student was denied a “free appropriate public education” because the student was placed in a class with autistic students. The Court of Appeals concluded that this argument “fails” because it was based on “mere speculation”. In particular, since the student never attended the assigned school there was no way to know which students would have been in his class.

Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) Issue: Grouping, and speculation Dispute: Was the student appropriately grouped with other students of similar individual needs.

Conclusion: The Court concluded that the parents’ argument that the student was not appropriately grouped did not foreclose the possibility that the student could be appropriately grouped. Moreover, because the student had never attended the recommended school and was not assigned a class, the parents’ concerns were entirely speculative.

Key Take Away: Arguments regarding grouping have to be based on a showing that the student would be grouped with students of similar individual needs and are speculative when the student has not attended the recommended school nor been assigned a class.

Reasoning: The student has been determined to be eligible for special education as a student with a traumatic brain injury. During the 2021-22 school year, the student turned 12 years old.

The district held a CSE meeting for the student on March 9, 2021 at which an IEP was developed.

Among other things, the IEP recommended that the student attend a district public school. On June 23, 2021, the parents notified the district that they intended to unilaterally place the student at a private school.

The parents filed a due process complaint notice on July 7, 2021 alleging that the student was denied a FAPE. Among other things, the parents alleged that the student was assigned to a “school location that was not safe or appropriate for [the student]. Regarding this, and after review, the IHO determined that the district provided the student a FAPE. The parents appealed 396

to the Office of State Review where a State Review Officer (SRO) agreed with the IHO and affirmed her decision. The SRO found the parents’ concern to be “entirely speculative”.

The parents commenced an action in federal court on August 15, 2022. For a number of reasons, the Court determined that the district offered the student a FAPE. Regarding the assignment of the student to the specific public school, the Court said that “the IDEA does not provide a parent with veto power over a student’s classroom or classmates … or prohibit the grouping of students with autism with student with intellectual disabilities”. M.S. v. N.Y.C. Dep’t of Educ., 2 F. Supp.

3d 311, 332 n.10 (E.D.N.Y. 2013). The parents had argued that other students at the severe end of the autism spectrum “could throw things or hit people” — including the student. The Court pointed out that “even these broad assertions do not foreclose the possibility that the student could be placed with other children — including children with autism – who have similar needs and do not pose any physical risk to [the student]”. Moreover, the Court agreed with the SRO “that because [the student] never attended the school and was not assigned to a class the parents’ concerns about grouping were entirely speculative”.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Was the parents’ claim that the recommended class program was not appropriate for the student because the student would not be grouped with students of similar needs supported by the record.

Conclusion: The parents’ claim that the recommended class program was not appropriate for the student because the student would not be grouped with students of similar needs was not supported by the record.

Basis of the Court’s Decision: In this case, the student “has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living”. “The student communicates only through vocalization, facial expressions, body movements, and eye gazing”. He is “incapable of learning on a typical academic trajectory”. At the time of the proceeding the student was sixteen or seventeen years old.

The district held a CSE meeting in March 2021. At that meeting, the CSE developed the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a particular District 75 public school, enroll in a 12-month program in a 6:1+1 special class, and receive extensive related services in occupational therapy, physical therapy, speech-language therapy, vision education services as well as full-time individual health paraprofessional services.

In a letter dated June 23, 2021, the parents advised the district that they disagreed with the IEP’s recommendation to place the student in the District 75 school and of their intent to unilaterally enroll the student in a private school. The parent signed a contract with the private school on July 2, 2021.

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The parents requested a due process hearing in October 2021 stating that the district had denied the student a FAPE and of their intent to enroll the student in a private school. Among other things, the parents asserted that the recommended school was not appropriate because it would not be able to place the student in a class where he was “grouped” with other students having similar needs.

The IHO found that the district did not provide the student with a FAPE, reasoning, among other things, that the student was not appropriately grouped with other students of similar needs in the recommended school.

The district appealed to the New York State Review Officer (SRO). Among other things, the SRO found that the evidence was not sufficient to merit a finding that the student was not appropriately grouped.

The parents appealed the SRO’s decision to federal court. In its decision, the Court stated that “[u]nder New York State regulations, students in special education classes must be grouped with other students having similar individual needs”. See 8 NYCRR 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3).

The Court pointed out, as indicated above, that the SRO reviewed the evidence in the hearing record regarding functional grouping and concluded that the record did not support the IHO’s conclusion that the school was incapable of appropriately grouping the student with other students of similar needs.

Regarding the parents’ expert, the Court pointed to the SRO’s finding that the expert “had not visited the proposed classroom or school site”, “had no specific information regarding the students in the proposed class”, and that her testimony was “rife with generalizations and unsupported hypotheticals”. The Court advised that, in its own review, it was in agreement with the SRO that the expert’s testimony was lacking, especially in light of the fact that she had testified that she had not observed any District 75 school in over two years.

The Court also pointed to the SRO’s review of the testimony of the recommended school’s assistant principal. That testimony “affirmed the school’s ability to implement the 2021-22 IEP with respect to class grouping”. The Court found the SRO’s reasoning “to be more than adequately supported by the record”.

The Court affirmed the SRO’s decision.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept. 22, 2023) Dispute: Whether the student was appropriately grouped in the recommended special class.

Conclusion: The Court concluded that because of the parent and the student’s absence from the school the parent did not know how the student would be grouped in the special class placement.

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In the alternative, the Court found that the student would have been appropriately grouped in the placement.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserts that the district did not recommend a classroom grouping of students with “similar individual needs” as well as similar academic levels and learning characteristics, levels of social development, levels of physical development and management needs. See 8 NYCRR 200.6(a)(3); 200.6(h)(2)-(5). In particular, the parent points to a district witness’s testimony that the students in the District 75 public school recommended for the student exhibited “a wide range of needs”.

The Court found the SRO’s position that the parent “waived her argument to glass grouping because she never visited the public-school placement, and thus could not know what the class grouping would be” persuasive. The SRO pointed out here that “the student did not attend the public school and the parent had not visited the public school since 2015”. Because of this, the Court concluded that “[a]ny evidence about how the student would have been grouped if he had attended the public school is necessarily and impermissibly retrospective”.

Even if this were not the case, the Court found that the CSE recommended an appropriate class grouping. In this regard, the Court cited to testimony that all of the students in the 12:1+4 classes and, in fact, in the entire District 75 school had a “wide range of needs”. The Court followed this up with the conclusion that “[i]t is evident [from the testimony] that the reason the students are grouped together in the specialized District 75 school is because they all have a wide range of needs…and thus the [parent’s] allegation that the CSE did not recommend an appropriate class grouping fails on the merits. 73

Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Was the student appropriately grouped with other students in his proposed special class.

Conclusion: The Court held that the parents did not show that the student was not appropriately grouped with the other students in the proposed special class.

It is clear from the Court’s decision on the merits that the Court misunderstands the relevance of class grouping in the context of applicable State regulation. The purpose of this requirement is to ensure that students in a special class placement are similar to each other for teaching and learning purposes and not to ensure that a special class has a “wide range of needs”.

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Basis of the Court’s Decision: State regulation provides, among other things, that a student should be appropriately “grouped” in a special class in that “the size and composition of a class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom.” See 8 NYCRR 200.6(h)(2), (3). Further, “[a] special class shall be composed of students with disabilities with similar individual needs.”

See 8 NYCRR 200.6(a)(3), (h)(2), (3). At the same time, a uniformity of needs is not required. See id. Consistent with this State regulation specifically points out that the level of physical development and management needs in a special class “may vary”. See 8 NYCRR 200.6(a)(3)(iii), (iv).

In this case, the parents assert that the grouping in the special class in the proposed district school was not appropriate for the student because of a “disparate and wide variance” relating to the student’s physical development and management needs vis a vis the other students in the proposed class.

As indicated above, and relative to grouping, in addition to providing guidance relating to the importance of students with similar needs being placed in the same classroom [see 8 NYCRR 200.6(a)(3), (h)(2), (3)], there is no requirement for students in a proposed special class to have a uniformity of needs. See id.

Additionally, the Court pointed out that relevant State regulation specified that “a functional grouping is appropriate so long as, inter alia, (1) the student’s management needs are met and do not [consistently] detract from the learning opportunities of the other students and (2) the student is provided appropriate opportunities to benefit in spite of the physical differences.” See 8 NYCRR 200.6(a)(3)(iii), (iv). More broadly, and as indicated above, State regulation specifically points out that the level of physical development and management needs in a special class “may vary”. See 8 NYCRR 200.6(a)(3)(iii), (iv).

Upon review, the Court concluded that “[t]he [p]arents have offered no objective evidence that the class grouping [in this case] would have inhibited [the student’s] development or that of the other students in the proposed classroom.”

MISCELLANEOUS Retrospective Testimony: C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that the SRO relied on “retrospective testimony” to find that the district met its burden to show that the recommended program was appropriate. The district disagrees that the SRO relied on such testimony.

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Conclusion: The Court concluded that the SRO did not rely on such testimony in order to prove that the district’s program was appropriate.

Basis of the Court’s Decision: The second circuit has held that an IEP “must be evaluated prospectively as of the time of its drafting … and therefore retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. R. E v. New York City Dept of Educ. 167, 186 (2d Cir. 2012) Because of this “a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP”. id. at 185. However, all testimony that goes beyond the face of the IEP is not prohibited as it is permissible for testimony “that explains or justifies the services listed in the IEP.” id. at 186.

In this case, the parents assert that a district witness testified on a retrospective basis with respect to the IEP and that the SRO relied on such to find that the district provided the student a FAPE. The Court pointed to the fact that relevant testimony “merely” explains or justified the relevant portion of the IEP and that the SRO “explicitly stated” that to the extent that the witnesses’ testimony went beyond explaining the IEP, it was not relied on. The Court further found that to the extent that the particular witness’s testimony “exceeded her bounds by discussing some topics not discussed at a CSE meeting” “or written in [the] student’s IEP”, the witness’s testimony was not “dispositive” of whether the district offered the student a FAPE.

LOCATION Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) 74 Dispute: Whether contact number errors in the school location letter, the acknowledgment thereof by the district, and the otherwise failure of the district to respond to requests for information relative to the assigned public-school site was a denial of a FAPE. Conclusion: The IHO held that contact number errors in the school location letter, the acknowledgement thereof by the district, and the otherwise failure of the district to respond to requests for information relative to the assigned public-school site contributed to a denial of a FAPE to the student.

Basis of the SRO’s Decision:

This SRO decision addresses in relevant part procedural issues relating to (1) the sufficiency of evaluative information; (2) the parent’s receipt of the IEP; and (3) the availability of information regarding the assigned publicschool site relative to the school location letter. As indicated above, the SRO did not find that issues relating to the availability of information regarding the assigned public-school site relative to the school location letter resulted in a denial of a FAPE alone. However, the SRO also concluded that each of the three issues “contributed to” the violation of a FAPE; which is to say that these three procedural issues when taken together or on a “cumulative” basis resulted in the denial of a FAPE to the student. See L.O. v. New York City Dep’t of Educ., 822 F.3d. 95,12324 (2d. Cir. 2016); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012).

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In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a 12-month program, a highly structured learning environment and had needs relating to behavior management, language development, and social skills. “[T]he parent asserts that the school location letter [is] deficient as it did not contain the correct contact information for the assigned school” and further, “that the assigned school failed to respond to her attempts to contact and obtain information from the school”. “The district acknowledges that the contact information was incorrect but argues that the parent did not detail her attempts to contact the school or demonstrate what information she was attempting to obtain. Additionally, the district asserts that, in any event, a parent does not have an unqualified right to visit an assigned school”.

Regarding the parent’s right to receive information about an assigned school site, “OSEP has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children”. Letter to Mamas 42 IDELR 10 (OSEP 2004). See also J.B. v. New York City Dep’t of Educ., 242 F. Supp. 3d 186, 195 (E.D.N.Y. 2017); J.C. v. New York City Dep’t of Educ., 2015 WL 1499389 at *24 n. 14 (S.D.N.Y. 2015). “On the other hand, there is [extensive] district court authority indicating that a parent has a right to obtain information about an assigned publicschool site ... in order to evaluate whether the IEP can be implemented at the proposed location”.

See H.L. v. New York City Dep’t of Educ, 2019 WL 181307, at *9 (S.D.N.Y. Jan 11, 2019); F.B. v.

New York City Dep’t of Eduic.,132 F. Supp. 3d 522, 538-45 (S.D.N.Y. 2015); V.S. v. New York City Dep’t of Educ., 25 F. Sup. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. v. New York City Dep’t of Educ., 23 F. Supp. 3d 210, 227-29 (S.D.N.Y. 2014).

In this case and regarding the district’s claims that the parent failed “to provide sufficient detail with respect to her attempts to contact the assigned school”, the SRO found that “the parent informed the district in her 10-day notice … that she had called these contact numbers repeatedly, and left messages, but had not received a response and she also explicitly requested information as to how to receive information about the proposed program … or arrange for a visit”. Further, as indicated above, the district acknowledged “that the school location letter contained an incorrect phone number and that this caused a continuous issue affecting the assigned school and the district office”.

Notwithstanding this, the SRO pointed out that “the district did not respond to the parent or otherwise attempt to connect the parent to the school for the purpose of the parent receiving more information concerning the assigned school site”.

Further, as indicated above, the SRO pointed out that “[w]hile the district may be correct that a parent does not have a general entitlement to visit a proposed school, it [the district] also acknowledges in its answer that, in accordance with some of the case law cited above, a parent has a right to obtain information about an assigned public-school site”. Regarding the claim that 402

the parent did not “demonstrate what information she was attempting to obtain”, the SRO pointed out that the district did “not cite any authority for the proposition that the parent must particularize his or her questions or concerns in order to find that a district impeded the parent’s ability to gain information from the assigned school”. With respect to this, the SRO pointed out that “[h]ere, the parent requested both a copy of the IEP and a means of contacting the assigned school to obtain additional information about the school and/or to arrange a visit”. The SRO also pointed out that “[t]he district [did] not dispute that it was obligated to provide the parent with a copy of the April 2020 IEP and also acknowledges that the parent had a right to obtain information about the assigned school”. The SRO concluded that “[d]espite being informed of the parent’s lack of an IEP or an effective way to contact the school, the district failed to provide the parent with either” The SRO held that “[a]s a result, the district’s failure to respond to the parent’s request for further information regarding the assigned school also contributed to a denial of a FAPE to the student”.

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the parent show that the recommended school was unable to implement the student’s IEP. Conclusion: Contrary to the IHO’s determination, the SRO concluded that the parent did not show that the recommended school was unable to implement the student’s IEP. Basis of the SRO’s Decision: “Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself”. “The Second Circuit has explained that speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement”. “However, a district’s assignment of a student to a particular public school site must be made in conformance with the CSE’s educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP”. However, “[t]he Second Circuit has held that claims regarding an assigned school’s ability to implement an IEP may not be speculative when they consist of prospective challenges to the assigned school’s capacity to provide the services mandated by the IEP”. “Additionally, the Second Circuit indicated that such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than mere speculation that the school would not adequately adhere to the IEP despite its ability to do so”. “In order for such challenges to be based on more than speculation, a parent much allege that the school is factually incapable of implementing the IEP”. “Such challenges must be based on something more than the parent’s speculative personal belief that the assigned public school site was not appropriate”.

The SRO pointed out that in this case, “the IHO failed to appreciate that the February 2020 IEP had already been implemented beginning on February 24, 2020 during the 2019-20 school year while the student attended eighth grade”. “The enrollment contract with [the private school] 403

was fully executed on August 13, 2020, and the parents provided a ten-day written notice of their intention to unilaterally enroll the student at [the private school … prior to the first day of the 2020-21 school year”. “Here, the notion that the district would simply cease implementing the student’s current IEP for the sole reason that the student would be moving to a new school building for ninth grade represents the type of mere speculation that the school would not adequately adhere to the IEP despite its ability to do so”.

Further, the SRO pointed out that “the parents did not allege any prospective, non-speculative challenges to the district’s capacity to implement the SETSS recommended in the IEP”. “As a result, the district’s burden to present evidence about the capacity of a proposed assigned school site to implement every aspect of the [IEP] when the student changed schools for the 2020-21 school year was never triggered”.

Application of the Dep’t of Educ., Appeal No. 21-184 (Oct. 27, 2021) Dispute: Whether the district provided the parents with notice of the student’s assigned school and if not, whether that deprived the student of a FAPE. Conclusion: The SRO upheld the IHO’s finding that the district did not properly provide the parents with notification of the student’s assigned school and that this was a denial of FAPE. Basis of the SRO’s Decision: A district is required at some point prior to or contemporaneous with the date of initiation of services under the IEP to notify parents in a reasonable fashion of the bricks and mortar location of the special education program and services in the student’s IEP. As set forth below, the absence of such notification is a denial of FAPE. The district held a CSE meeting “on December 11, 2019 to develop an IEP for the student for the remainder of the 2019-20 school year and a portion of the 2020-21 school year”. The student’s mother testified that she never received a response to her August 2020 letter and that she did not receive the IEP or a school location letter. She testified that “she first saw the December IEP and the school location letter in April 2021, during the course of the impartial hearing”. She also testified that “there came a time when her husband did find the email from the district with the school location letter; however, but that because her husband had never been the point of contact for the district, and she had been”, her husband merely put it amongst his papers.

Further, according to the evidence at the hearing, “the district used an incorrect email address for the mother and sent the student’s school location letter to that incorrect email address”.

The SRO also concluded that the IHO correctly found that the “district’s attempt to deliver the school location letter via email was not in accord with its own practices and was not reasonably calculated to provide the parents with notice”. In particular, according to the FAQs on the district’s website, “documents may be sent to a parent via email after getting the parent’s consent to receive documents via email”. The website “further indicated steps that should be taken to obtain a parent’s consent for communication via email, including attempting to reach the parent by telephone”. Here, “[t]he student’s mother testified that the CSE had not communicated with the student’s father to obtain his email address and consent to provide 404

documentation by email”. “The student’s mother also testified that the district had not ever requested permission or consent to communicate with her via email”. The record also showed that notwithstanding that the district had the parents’ mailing address and that it had previously provided “important” documents such as IEPs or school location letters “by mail”, in this case, the district appeared to have elected to only email those documents to the parents without even a follow-up telephone call.

The SRO concluded that “the district failed in its obligation to notify the parents, either in writing or orally, as to where or how the student could access his IEP services despite efforts made by the parents to obtain that information from the district.” The SRO held that this was a “procedural inadequacy” which “resulted in the parents being provided with too little information as to how or where the recommended special education program would have been implemented and therefore resulted in a denial of FAPE”.

V.A. v. New York City Dept of Educ.,20 CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) Dispute: Does the proof show that the district issued a “school location letter” to the parent.

Conclusion: The proof did not show that the district issued the parent a “school location letter”.

Basis of the Court’s Decision: The IDEA requires that the IEP include the frequency, location, and duration of the services to be provided. See 34 CFR 300.320(a)(7)”. Consistent with this, a school location letter advises the parent of which school the student is slated to attend. And “the Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow. T.Y. New York City Dept of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); see also C.F. 746 F3d 68, 79 (2d 2014).” However, and citing cases, the Court concluded that the “school designation cannot come so late that it impedes the parents ’ability to participate meaningfully in the school selection process”. See S.Y. v. New York City Dept of Educ.,210 F.Supp, 3d 556, 574-75 (S.D.N.Y. 2016); see also F.B. v. New York City Dept of Educ.

132 F.Supp. 3d 522, 541-43 (S.D.N.Y. 2015); C.U. v. New York City Dept of Educ., 231 F. Supp. 3d 210, 227 (S.D.N.Y. 2014). The Court also opined that it “[o]bviously follows” that a school district commits a procedural violation when it fails to send a school location letter at all”. See C.U. 23 F.Supp. 3d at 228. The Court also cited to the SRO’s finding that “in light of the immense size of the district in this case, it [was] reasonable to hold that the district was required to notify the parent where the IEP services would be implemented before the IEP went into effect as part of its obligations to implement the student’s services” 75.

Citing to relevant authority, the SRO has also found that the district has an “obligation to notify parents, either in writing or orally, as to where or how the student [can] access his IEP services” and that the failure to do this is a violation of the student’s right to a FAPE. See Application of the Dept of Educ, Appeal No. 21-184 (Oct. 27, 2021); see also T.C. v New York City Dept of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016);,Tarlowe v. New York City Dept of Educ., 2008 WL 2736027 at *6 (S.D.N.Y. July 3, 2008); M.O. v. New York City Dept of Educ.

793 F.3d 236, 244-45 (2d Cir. 2015); H.L. v. New York, City Dept of Educ, 2019 WL 181307 at *9 (S.D.N.Y. Jan. 11, 2019); F.B. v. New York City Dept of Educ., 2015 WL 5564446 at *11-*18 (S.D. N.Y. Sept. 21, 2015); V.S. v.

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In this case, the district asserts that it mailed a school location letter to the parent on July 12, 2018. Meanwhile, the parent sets forth that she never received such a letter. In relevant part, the IHO and/or the SRO asserted that the evidence showed (1) the “actual mailing” of the letter on July 12 and (2) that the facts showed a presumption arising under New York state law that the letter had been mailed on July 12. Upon extensive review of New York state law, the Court found that the IHO and SRO did not have sufficient evidence to support the view that actual mailing of the letter had taken place or that the presumption of mailing the letter in accordance with New York state law applied. See V.A. v. New York City Dept of Educ., 20 CV-0989(EK)(RML), 2022 WL 1469394 at *7 - *11 (E.D.N.Y. May 10,2022). This being the case, the Court held that the record did not show that the district provided the school location letter to the parents prior to the beginning of the school year.

A procedural violation will deny the student a FAPE “if [it] impeded the child’s right to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process, or caused a deprivation or educational benefits”. The Court held that here, “the failure to identify any school at which the IEP services would be provided constituted a serious procedural error”. With appropriate citations, the Court held that “[m]oreover the failure to identify a school meant that [the parent] was unable to arrange for a visit to the school or to inquire about its facilities or programs (C.U. 23 F.Supp.3d at 228)4 or otherwise meaningfully participate in the school selection process”. (F.B. 132 F. Supp. 3d at 542)”.The Court concluded that “because this procedural violation significantly impeded [the parent’s] opportunity to participate in the decision-making process concerning the provision of a FAPE, this procedural violation constitute[d] a denial of FAPE.

NEEDS OF STUDENT Application of the Bd. of Educ., Appeal No. 23-127 (Aug. 21, 2023) Dispute: Did the district’s IEP address the student’s needs relative to OT services Conclusion: The SRO upheld the IHO and adopted the conclusion that the IEP did not address the student’s needs as it related to OT services.

Basis of the SRO’s Decision: This case concerns a student who was 17 years old during the 2020-21 school year and had been unilaterally placed at a private school since 2017. The student had received diagnoses of autism, attention deficit hyperactivity disorder (ADHD) and Tourette Syndrome.

A progress report dated November 2019 from the student’s private school advised that “the student received occupational therapy (OT) services daily during morning and afternoon New York City Dep’t of Educ. 25 F.Supp. 3d 295, 299-301 ( E.D.N.Y. 2014); C.U. v. New York City Dept of Educ., 2014 WL 2207997 , at *14-*16 (S.D.N.Y. May 27, 2014).

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“advisory”, in adaptive skills class seven periods per week, and during a weekly, three period community trip.”

“According to the school psychologist, the May 2020 CSE did not recommend OT, which she noted typically addressed fine motor skills”. Regarding this, she did not testify “that the CSE did not believe the student required OT services …” 76 The psychologist testified that instead “she informed the student’s parents that if the student had significant fine motor skills that impeded on his academic success, they could request an OT evaluation and OT services could be added if deemed appropriate”. The school psychologist also “indicated that the district specialized school would address vocational skills, daily living skills, and personal hygiene skills and were all equipped to handle the daily living skills training that the student required”.

The SRO explained that “the thrust of the [the school psychologist’s] testimony [was] that the student could receive services available at the public-school site, but that were not actually listed on his IEP”. The SRO was clear that “this kind of after the fact justification of an IEP with the further possibility of potential services that are not listed on the IEP is impermissible”. See R.E. v. New York City Dep’t of Educ., 694 F. 3d 167, 186 (2d Cir. 2012); P.L. v. New York City Dep’t of Educ., 56 F. Supp 3d 147, 163 (E.D.N.Y. 2014). The SRO further pointed out that the IEP did not provide any information “detailing the student’s physical or sensory needs or his needs related to adaptive living skills”.

Application of the Dep’t of Educ., Appeal No.23-105 at pp. 4, 6-7, 17-18, 27-31 (July 26, 2023) Dispute: Did the district evaluate the student’s visual needs?

Conclusion: The district did not evaluate the student’s visual needs, which violated the student’s right to a FAPE. Basis of the SRO’s Decision: Medical diagnoses by an ophthalmologist indicated “amblyopia in the [student’s] left eye, exotropia in the left eye, posterior lenticonus, and blindness in both eyes”. “[T]he student should be considered blind and receive full vision services”. Among other things, the parent asserted in the due process complaint notice that the student “exhibited characteristics of cortical visual impairment (CVI) and that the district’s failure to recommend vision education services (VES) constituted the denial of a FAPE for the student”. “[T]he IHO found that the district failed to evaluate the student’s needs related to her exhibitions of CVI, which [the IHO] held to be an issue that the district should have identified as far back as 2009, and that the district’s failure to evaluate the student’s vision needs or recommend vision education services constituted a gross violation of the IDEA” which in part supported a finding that in addition to tuition reimbursement 76

If she had testified to this effect, the district would have had the burden to show that such was the case.

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the student was due “four years of extended eligibility of special education services at the private school until [the student] reached the age of 25”. The SRO concluded that there was “nonretrospective evidence in the hearing record that supports the IHO’s determination that the district failed to sufficiently evaluate the student’s vision needs or offer vision services” and that “[a]s such, the IHO’s determination that the district denied the student a FAPE … must be upheld”. The SRO also agreed with the IHO that the parent’s request for two years of tuition reimbursement was an appropriate remedy.

However, the SRO also concluded that the evidence was not sufficient to support a finding that an appropriate award of compensatory education included “four years of extended eligibility of special education services until [the student] reached the age of 25”. With respect to this, the SRO said that the student had at least two or more years of special education before her right to special education would expire; that as a result of the decision that the district had denied the student a FAPE, the student had been awarded tuition reimbursement for the 2020-21 and 202122 school years; that during this two year period, the student had a right to challenge future CSE recommendations; “that the student had been making gradual progress in the district program during the school years at issue” and was “making additional progress in the unilateral placement”; that regarding her vision needs, the record showed that despite the district’s violations of a FAPE, “the student was able to make progress and access her education”; that the student began receiving vision education services at the private school during the 2020-21 school year and “had been steadily progressing in almost all of her [private school] goals [including] achieving two of her vision goals”. In light of the “mitigation” shown, the SRO concluded that the IHO’s award of two years of tuition reimbursement at the private school represented “a proportionate and appropriate remedy for the district’s denial of a FAPE to the student”. The SRO also pointed out that the IHO had based the finding of a “gross” violation of FAPE, among other things, on the conclusion that the denial of FAPE had begun in the 2008-09 school year and that the SRO “was not aware of any authority from the Second Circuit Court of Appeals that would support the broad premise that relief could be awarded to remedy some portion of violations that occurred in school years that were barred by the statute of limitations (but see G.L. v Ligonier Valley Sch. Dist. Authority, 802 F.3d 601, 616 [3rd Cir. 2015])” and found that “[i]n any event, here the IHO failed to explain why the student’s district-funded attendance at [the private school] [and the services that she received there] was not adequate to remedy the FAPE denial, and therefore the IHO’s award was inappropriate on equitable grounds”. Finally, the SRO referenced the IHO’s remedy and pointed to the fact that it involved “a prospective placement at [the private school] for four years” which, “under certain circumstances, [had] the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs”.

Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022) Dispute: Whether the October 30, 2020 IEP and the student’s program for the 2021-122 school year provided the student with a FAPE. 408

Conclusion: The SRO agreed with the IHO that the district failed to provide the student with a FAPE but on different grounds.

Basis of the SRO’s Decision: The student was found eligible as a student with a speech or language impairment when she was in kindergarten during the 2018-19 school year. Initially, during the 2019-20 school year when the student was in the first grade, she was assigned to a general education classroom with integrated co-teaching services (ICT). 77 She also received speech-language therapy twice a week for 30 minutes and “at risk SETSS” 78 Midway through that school year and for reasons that are not entirely clear, the student’s classroom program was changed to a general education classroom. The student underwent a private neuropsychological evaluation in May 2020. The private evaluation “yielded the following diagnoses: specific learning disorder with impairment in reading (dyslexia, fluency, oral reading); specific learning disorder with impairment in mathematics (fluent calculation); specific learning disorder with impairment in written language (spelling); attention deficit hyperactivity disorder (ADHD) (inattentive type); and a language disorder”. Among other recommendations, without saying how small, the evaluator recommended a “small class” as well as “intensive academic instruction in reading and spelling, using Orton Gillingham or Wilson method” and continued speech language therapy three times a week. In June of 2020, for her second-grade program, the CSE changed the student’s classification to learning disability. That CSE also recommended the student attend a general education classroom, receive three periods a week of direct, group SETSS in English language arts, two periods a week of group SETSS in math and two 30-minute sessions of speech-language therapy. 79 The CSE met again on October 30, 2020, to review the May 2020 private neuropsychological evaluation. After review of the evaluation report, the CSE made no changes to the student’s program or related services but added testing accommodations and special transportation. Based on her review of the October 30, 2020 IEP, which IEP took into account the private neuropsychological evaluation and teacher and parent reports, the SRO concluded that “the student exhibited deficits in her reading; writing, including spelling; math and math fluency; memory, attending, and following directions: organization; and functional communication”. The parents did not agree with the CSE’s October 2020 recommendation, gave the district notice of their intent to place the student at Churchill, a private school on Juned 23, 2021, and again on July 19, 2021, and thereafter did so for the 2021-22 school year when the student would be in the third grade. The CSE convened on November 17, 2021, and continued to recommend that the student attend a general education classroom, with direct, group SETSS State regulations define ICT services as “specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students” in a classroom staffed “minimally” by a “special education teacher and a general education teacher” (see 8 NYCRR 200.6[g]).

77

78

SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6).

The school psychologist testified at the hearing that a general eeducatyi8on class “could have as many as 323 students in it.”

79

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programming for ELA and Math as well as speech-language therapy. As indicated, the student was in the third grade at the time of the November 2021 CSE meeting.

By due process complaint notice dated September 10, 2021, the parents alleged that the district did not provide the student with a FAPE for the 2020-21 and the 2021-22 school years. Among their objections were concerns regarding the class size of the recommended program and related services.

Upon review, the Impartial Hearing Officer (IHO) concluded that the district failed to provide the student with a FAPE for the 2020-21 and 2021-22 school years. Among other things, the IHO concluded that the student required small classes, specialized reading instruction and three sessions a week of direct, group speech-language therapy.

The district appealed. It argued that the recommendations for SETSS and speech language therapy in the general education setting was appropriate. It also pointed to the fact that, as indicated above, “in first grade the student was removed from a general education classroom with ICT services and placed in a general education classroom with SETSS because the parent thought it ‘was a better fit’ for the student”. The district also pointed to the October 2020 social history update which indicated that the parents had stated there that “the general education class had more structure and was a better fit for the student than the ICT class had been”. The district also asserted that the student was “making progress” in the CSE’s recommended program. The parents answered and argued “that the evidence in the hearing record [did] not support a finding that the student made adequate progress with the district’s recommendation …”, that they were “not consistent with the private neuropsychological evaluation which recommended “a small student /teacher ratio and intensive academic instruction”. Regarding the recommendations for the 2021-22 school year the parents argued “that the CSE had the opportunity to assess the student’s progress but did not.”

With respect to the October 30, 2020 CSE, the SRO indicated that she found a denial of FAPE but on a different basis than did the IHO. The SRO found an “evidentiary deficiency underpinning the district’s failure to meet its burden that it provided the student with a FAPE [which was] the dearth of evidence supporting the CSE’s recommendation to place the student in a large general education setting with no special education support in the classroom given her well documented attentional needs and significant academic needs in the areas of reading, writing, and math.

Further, among other things, the SRO pointed to the testimony of the SETTS provider, who was a special education teacher, and who participated in the October 2020 CSE meeting that “it was her impression that an ICT classroom was a better fit for the student than a general education class because of [the student’s] difficulties with decoding, but she did not believe that the parents had agreed to an ICT setting”. The SETSS provider also testified “that the October 2020 IEP indicated the student was ‘far below grade level in writing and math, and at an end of kindergarten level in reading’ which was not consistent with a student who would benefit from SETSS because the student ‘belonged in an ICT’”. Regarding the parents’ opinion, the school psychologist testified that “the student’s mother felt strongly that an ICT class was not an 410

appropriate placement for the student.” The student’s speech-language therapist also testified that “there were concerns from the family about placing the student in an ICT class”. Additionally, there was disagreement between the parents and the school psychologist regarding whether the parents had expressed an opinion regarding the ICT program at the October 2020 CSE meeting.

The school psychologist reported that the mother communicated that she “was not interested in that type of setting”. The parent set forth that there was no discussion of an ICT program at the CSE meeting. Regarding class size and whether a special class was appropriate, the SRO pointed out that “a special class [was] not the only option on the continuum available to the CSE with respect to a student who may need special education support in the classroom”. The SRO concluded here that the district “did not provide evidence supporting the appropriateness of a general education placement for the student or why SETSS and speech language services alone would be adequate to meet the student’s needs, particularly given the student’s specific need for classroom support … individually or in small groups to ensure that she [was] able to individually manage necessary tools and practices and practice the taught strategies using manipulatives and visuals”. With respect to the student’s previous first grade experience in an ICT classroom, the SRO pointed out that “the hearing record [was] devoid of any evidence as to whether the CSE previously recommended ICT services for the student on an IEP, whether such services were removed and why and if the student had been in a classroom with ICT services as a special education student or as a general education student.”

The SRO further concluded that “the hearing record gives the impression that ICT services were in some respects ‘off the table’ for the 2020-21 school year due to parental concerns, despite the student’s deficits in reading, writing, and math skills and performance below grade level as well as evidence that the student required some level of special education support in the classroom in order to address her needs, thereby raising the question – not answered by evidence in the hearing record – as to whether the CSE may have been acquiescing to parental misgivings rather than evaluating the potential merits of an ICT services recommendation”.

With respect to the 2021-22 school year, again, the SRO conveyed that while she agreed with the IHO that the district did not provide the student a FAPE, it was on a different basis than the IHO’s determination. In this regard, the SRO advised that while there was “extensive testimony from the student’s providers for SETSS and speech-language therapy concerning the student’s progress during the 2020-21 school year, neither provider appeared at the November 2021 CSE meeting and none of their input regarding the student’s performance during the school year was reflected in the November 2021 IEP”. “Moreover” the SRO said that “the student’s performance during the 2020-21 school year in her general education classroom setting (conducted remotely) [was] not reflected in the IEP”. Rather, the SRO said, “the entirety of the information concerning the student’s present levels of performance as reflected in the November 2021 IEP appears to be derived from the approximately two months she attended Churchill prior to the November 2021 CSE meeting”. The SRO said that “[t]his [was] especially troubling from an evidentiary perspective given that there is also evidence in the hearing record that the student attended school entirely on a remote basis during the 2020-21 school year with extensive one-to-one 411

support from her mother and scheduling of her SETSS and speech-language therapy sessions around her classroom instruction so that the sessions were effectively not ‘pull out’ sessions as envisioned by the October 2020 IEP”. The SRO also pointed out that [t]he student received private tutoring sessions throughout the 2020-21 school year.” The SRO concluded that “[a]ccordingly, the district has failed to meet its burden that program recommendations identical to those recommended for the 2020-21 school year (which it similarly failed to demonstrate were appropriate to meet the student’s needs at the impartial hearing) would be appropriate for the 2021-22 school year, particularly given that the assessment of the student’s current educational needs contained in the November 2021 IEP was not based on information concerning her performance during the bulk of the 2020-21 school year, taking into account that school year’s attendant unusual implementation of classroom instruction and related services on a remote basis with one-to-one support from the student’s mother and private tutoring.”

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the CSE sufficiently address the student’s social/emotional needs.

Conclusion: The SRO concluded that the district did not meet its burden to prove that the CSE sufficiently addressed the student’s social/emotional needs.

Basis of the SRO’s Decision: The IEP reported that the student had “a significant level of emotional distress”. The parents asserted that the IEP was “deficient” because it did not include counseling. “The CSE rejected counseling because it believed that the student’s needs could be addressed by providing appropriate instructional support”.

The SRO concluded that “the district failed to meet its burden to show that the supports included in the IEP were sufficient to address the student’s social/emotional needs, which the IEP itself described as significant”. With respect to the effect of (additional) structural support on the level of the student’s distress, the SRO concluded that there was “insufficient evidence in the hearing record to indicate that the student’s perception of his abilities was the only factor underlying the student’s emotional distress and that additional supports were not warranted”.

The SRO concluded that based on this deficiency as well as the lack of sufficient evaluative information before the CSE, and the district’s failure to show that the IEP’s recommendation for a SETSS program for the student was appropriate supports a finding that the district did not show that it offered the student a FAPE. Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the IEP include recommendations for small-group instruction in the classroom or sufficient supports for the student’s challenges with attention.

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Conclusion: The SRO concluded that the district addressed the student’s need for small group instruction in the classroom and provided sufficient supports for the student’s challenges with attention.

Basis of the SRO’s Decision: The SRO reviewed the IEP and the student’s needs and concluded “that the CSE identified the resources and strategies necessary to address the student’s management needs”. That further, the SRO pointed out that “supports for the student’s management needs were developed in accordance with evidence-based strategies to help students with organization, memory retrieval, and comprehension” and that the record showed that “the management needs [sic] were designed to maximize the student’s performance and help him become more self-sufficient and self-regulating”.

Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) Dispute: Whether an Interim Plan in the student’s IEP with respect to the student’s language needs was appropriate.

Conclusion: The SRO concluded that an Interim Plan in the student’s IEP to address the student’s language needs was not appropriate.

Basis of the SRO’s Decision: “The district alleges that the IHO erred in his determinations relating to the assigned public school’s site’s capacity to implement the 12:1+1 special class mandated on the student’s IEP in a classroom with a Yiddish-speaking special education teacher during the summer portion of the student’s 12-month program … [and] asserts that the student did not require a Yiddish speaking special education teacher during the summer months to access the curriculum.” “The district asserts that the student’s IEP stated that the student could be placed in a monolingual English-speaking class on an interim basis and that having an English-speaking teacher with a class paraprofessional translating instruction into Yiddish for two months qualified as the type of interim instruction contemplated by the student’s IEP”. “The parents contend that the IHO correctly determined that the lack of proper bilingual instruction during the summer portion of the student’s 12-month program was inappropriate, and further contend that the district erred in failing to properly assess the student’s language needs as required by State regulation and guidance”.

With respect to interim plans on an IEP, the SRO advised that “Federal and State regulations provide that a CSE must consider special factors including, in the case of a student with limited English proficiency, how the student’s language needs relate to the student’s IEP”. “Pursuant to State guidance, when developing an IEP for a limited English proficient student with a disability, the CSE must consider the special education and supports and services a student needs to address his or her disability…” “Such considerations include but are not limited to the student’s need for special education programs and services to support the student’s participation and progress in English language arts instruction, content area instruction in English and ESL instruction, and whether the student needs bilingual special education and/or related services…”.

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“With respect to [this] student’s language needs, the January 2019 IEP noted that the student had limited English proficiency and required special education to address his language needs as they related to his IEP”. “[A]lthough the student spoke “both English and Yiddish, his testing performance improved in Yiddish and Yiddish was the student’s dominant language”. “[T]he student’s parents’ language is Yiddish”.

The IEP called for a 12:1+1 special class in a specialized school with the language of the service being Yiddish, along with the related services of OT and PT in English and speech-language therapy in Yiddish … The IEP also call[ed] for the same services to be offered during the summer portion of the student’s 12-month program”. The IEP further states that “if there is no provider available [in Yiddish], the student would be provided interim service in English pending availability of a bilingual provider and contemplates placing the student in an interim monolingual class”.

The SRO said that, among other things, “[t]there may be circumstances when it is appropriate to develop an interim plan for a student” and noted authority “that interim IEPs should only be used in special circumstances where necessary”, that “[a] district may not utilize an interim plan in order to postpone the provision of a FAPE to the student”, and that “[j]ust as with any IEP recommendations, an interim plan must be related to the student’s needs, not administrative convenience of the district.” Further, the SRO said that “if a CSE develops an interim plan, the interim plan must offer the student a FAPE”.

The SRO concluded that in this case the “the district’s attempt to build into the student’s IEP a contingency plan is problematic as the interim plan was developed, not to address the student’s needs but to address the district’s anticipation that it could not fulfill the terms of the IEP”. And, the SRO said, “in this instance the district [did] not purport to argue that the interim plan included in the [IEP] -- a monolingual classroom – was appropriate for the student on an interim basis or otherwise”. The SRO pointed out that the district’s only argument was that “on an interim basis, the student would have received the support of a Yiddish-speaking paraprofessional”. However, the SRO pointed out. that “the IEP did not include a recommendation for a paraprofessional, and testimony indicating that the student would have received paraprofessional services on an interim basis constitutes impermissible retrospective testimony that attempts to rehabilitate or revise the IEP (R.E. v. New York City Dep’t of Educ, 694 F. 3d 167, 186-88 [2d Cir. 2012])”.

Additionally, the SRO said that “there [was] no indication for how long the CSE contemplated that an interim placement would be in place”.

The SRO concluded that “[h]aving found that the district essentially conceded that the interim arrangement of a monolingual classroom would not have been appropriate for the student, the January 2019 IEP, which contemplates this temporary program was not appropriate and did not offer the student a FAPE”.

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NEEDS OF STUDENT: METHODOLOGY Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024) Issue: IEP – methodology Dispute: Did the student’s regular school day offer enough time for the student to receive all required instruction.

Conclusion: The student’s regular school day offered enough time to receive all required instruction.

Key Take Away: Before assuming that there is not sufficient time during the school day to receive the amount of required instruction, the parent should consider alternative available methodologies.

Reasoning: The parent claimed that the student was denied a “free appropriate public education” because there was not enough time during the regular school day for the student to receive the services in his IEP. The Court of Appeals agreed with the District Court that in this case services could have been provided on a push-in basis during regular class time.

Falmouth School Dep’t v. Mr. and Mrs. Doe, 44 F.4th 23 (1st Cir. 2022) Dispute: Did the reading methodology used by the district deny the student a FAPE? Conclusion: The Circuit Court upheld the Hearing Officer’s and District Court’s rulings that the reading methodology used by the district for the student denied him a FAPE. Basis of the Circuit Court’s Decision: This case concerns the period of time January 2018, to March 2019, and September 2019, to February 2020, the IEPs dated January 2018, January 2019, September 2019, and November 2019, and the appropriate methodology for the student’s reading.

Before addressing this period of time and the IEPs at issue, it is useful to start with the student’s January 2017 IEP when he was in first grade. At that point in time, the district considered the student a “non-reader”. To address the student’s reading difficulties, the student’s special education teacher initially taught the student in accordance with the Wilson Method but soon shifted to the SPIRE reading methodology.

At the time of the student’s January 2018 IEP, when he was in the second grade, the student was still significantly behind in reading. His special education teacher had identified the student’s “biggest challenge” as orthographic processing and phonological processing. Notwithstanding the student’s continuing difficulty with reading, the January 2018 IEP continued to provide the student with SPIRE reading programing. By June 2018, his special education teacher at that time 415

commented that the student “had taken longer to complete the first level of the BASS reading measurement system than any other student the special education teacher could recall.

The student began third grade in the fall of 2018. The IEP team met in September 2018. The IEP team again suggested nothing different than SPIRE. Although the student’s new special education teacher initially used the Wilson Foundation materials in instructing the student, later in the fall she switched back to the SPIRE methodology. The student’s significant reading difficulties continued. In December 2018, the student underwent a private reading evaluation from a private school. The evaluators assessed some of the student’s “core reading skills” to be at the pre-k to kindergarten levels. The evaluators specifically recommended use of the LindamoodBell curriculum of LiPS followed by/overlaid with the Seeing Stars program for the student’s reading development. Prior to the January 2019, IEP Team Meeting, the student’s parents requested that the district’s reading instruction include the Lindamood-Bell curriculum followed by/overlaid with the Seeing Stars program. At this point in time, the student remained considerably behind in reading, as he was only at an early first grade level. The IEP Team met again in January 2019. It provided that the student would receive nine hours of weekly instruction using the Seeing Stars methodology. The student would be taught by a teacher who had not previously taught the student and would consult with a trainer certified in LindamoodBell programming every other week for fifty minutes. At the January 2019, IEP Team meeting the parents advised the district they would remove the student from the district’s school every afternoon so that he could receive “intensive” one on one reading programming at the private school using the Lindamood-Bell LiPS and Seeing Stars program for two hours a day. The parents requested that the district adjust the student’s programming so that he could remain in his mainstream classroom during the mornings and receive afternoon reading instruction at the private school in the afternoons. The district was not agreeable to this and advised the parents that they would continue to provide the student with specialized instruction during his morning program. The parents revoked their consent for services under the 2019 IEP on March 12, 2019 and requested that the district provide them with accommodations in a Section 504 plan. The student continued to spend his mornings in his mainstream classroom and received specialized reading instruction at the private school in the afternoon.

The student received a number of assessments during the Spring and Summer of 2019. Among these, a neuropsychological evaluation recommended Lindamood-Bell programing. The evaluation concluded that the student was still reading at the first-grade level. Consistent with this, a district-referred evaluator concluded that the student was “well-below average…across all core domains”.

The district proposed a new IEP in September 2019, when the student started the fourth grade.

The IEP team indicated that it would not offer any Lindamood-Bell programming in that new IEP. The IEP team met again in November 2019. The district again conveyed to the parents that it would not offer any Lindamood-Bell programing. The parent rejected this IEP and enrolled the student in the private school that November. In March of 2020, according to the private school, 416

the student was reading at a mid-second grade to early third grade level. In the fall, the student’s report card indicated that the student was “practicing reading” at a third-grade level.

After an impartial hearing, the Hearing Officer concluded that the district had denied the student a FAPE from January 2018, to March 2019, and from September 2019, through February 2020, which excluded only that period of time when the parents had revoked their consent that the student receive IDEA services at the district school.

The Hearing Officer determined that the January 2018 IEP was not reasonably calculated to provide the student with a FAPE because of its reliance on SPIRE. Among other things, the Hearing Officer pointed to the district’s failure to request additional evaluations focused on the student’s orthographic processing and its continued reliance on SPIRE programming rather than “considering a change in the methodology being used for [the student’s] programming”. The hearing officer specifically identified the Seeing Stars program that a number of evaluators or teachers had testified was specifically designed for children who have orthographic dyslexia as an alternative methodology.

The Hearing Officer next turned to the January 2019 IEP which the parents had rejected. The Hearing Officer called that IEP “a step in the right direction” but “too little too late” given the district’s reluctance to conduct further evaluations and its staff’s lack of experience in delivering Lindamood-Bell programming.

The Hearing Officer addressed the September 2019 IEP and concluded that it was “not reasonably calculated and reasonably ambitious to enable the student to make appropriate progress in light of his circumstances”. The hearing officer found it “incongruous” that the district seemed to hold out hope that the SPIRE program would work for the student after two years of limited progress, even as it offered and then abruptly removed the Lindamood-Bell programming, declaring that it was ineffective after the student had only incorporated it into his learning for a period of six months.

The Hearing Officer also determined that the private school was an appropriate placement and ordered the district to reimburse the parents for the cost of the student’s tuition from January 2019, to September 2019, and for the 2019-20, school year.

The district sought Court review and the District Court found in favor of the parents. The district appealed that decision to the Circuit Court.

On Appeal, the district first argued that the District Court had erred because it based its conclusion on the finding that SPIRE did not address orthographic processing. The Court concluded that this is not what the District Court said but only that the preponderance of the evidence supported the Hearing Officer’s conclusion that none of the IEPs at issue were reasonably calculated to ensure that the student would receive a FAPE because none used Seeing Stars or a similar program and so none was specifically designed to address the student’s specific orthographic processing deficit given both what the record showed about the acuity of that 417

deficit and the way that Seeing Stars was specially designed to address it while SPIRE was not.

The district does not dispute that, as the District Court pointed out, the record contains an evaluation that specifically recommended using Seeing Stars programing to address the student’s specific orthographic processing deficits.

In a related argument, the district asserts that the District Court erred in ruling that the district denied the student a FAPE during the time in question because it erred in assessing whether an IEP that relied on Seeing Stars would be reasonably calculated to ensure that the student would make appropriate progress relative to whether an IEP that relied on SPIRE would be. The Circuit Court first pointed out that the district did not deny that the record contained an evaluation from the private school that “specifically recommended using Seeing Stars programing to address the student’s specific orthographic processing deficits”. The district contends however, that this is not critical because of contradictory testimony in the record. The Circuit Court looked at the referenced testimony and concluded that the testimony was not “contradictory” to that of the parents’ and did not require the District Court’s ruling be overturned.

In a related matter, the district cited to First Circuit case law and to the Supreme Court’s Endrew F. decision 80 to assert that the District Court erred in ruling that the IEPs at issue were not “reasonably calculated” to ensure that the student would receive a FAPE. The Circuit Court pointed to the same case law which provided that Courts are entrusted with ascertaining the adequacy of an IEP’s components and importantly, that according to Endrew F., adequacy includes whether the instruction offered is specially designed to meet a child’s unique needs through an IEP. The Circuit Court said that the District Court applied just that standard in assessing whether or not the student was denied a FAPE. The district also argues that the District Court erred with respect to its assessments of all the IEPS at issue because it ignored clear evidence that the student was going to progress at best slowly under any reading program, instead of finding FAPE violations based on the student’s slow growth. The Circuit Court said that this was not the case and that the District Court did account for the fact that the student was a “slow learner” – or more precisely, that the student had orthographic and phonological processing deficits – in its analysis of each of the relevant IEPs. The district further asserts that the District Court by approvingly citing the slow gains that the student made at the private school while not doing the same with respect to his slow gains at the district only “selectively relied on the student’s unique circumstances. The Circuit Court pointed out, however, that the District Court found that the student’s progress at the private school was still greater than his progress at the district over a much longer time.

Citing to Fourth Circuit caselaw, the district contends that parents have to offer expert testimony to show that a proposed IEP is inadequate. Here, the Circuit Court pointed out that the parents offered testimony from experts from the parent’s private school that the student had a serious 80

See Endrew F. v. Douglas Cnty. Sch. Dist., 580 U.S. 386 (2017).

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orthographic processing deficit, that SPIRE was not a program whose use made an IEP specially designed to meet the student’s unique needs in consequence of his having a deficit of that kind, and that a program (Seeing Stars) did exist that would have resulted in an IEP that was designed to do so if that program had been employed.

Next, the district argues that in the context of this case – whether the comparison was between the pubic placement and either a part time private placement or a full-time private placement that LRE considerations precluded each of these comparisons. After an extensive analysis, the Circuit Court disagreed with the district’s argument and determined LRE considerations did not affect the analysis.

The district also takes issue with specific IEPs. With respect to the January 2018, IEP, the district asserts that the District Court arrived at its conclusion that the recommended program did not provide the student with a FAPE on the basis of evidence of improvement after the January 2018, CSE meeting. The Circuit Court looked at the evidence and concluded that there was sufficient evidence prior to the CSE meeting to determine that the district’s proposal did not constitute a FAPE for the student. The District Court also determined that given its findings, “the preponderance of evidence” supports a finding that the IEP the district developed for the student in early 2018, failed to provide programming that would allow the student to make more than de minimus progress on basic reading and writing skills over the following year.

Regarding the January 2019 IEP, which the Hearing Officer and the District Court had characterized as “too little too late,” the Circuit Court found that this was a defensible conclusion as the Hearing Officer concluded that the evidence showed that the district’s plan for implementing a Seeing Stars program, including utilizing a teacher who was not certified in Lindamood-Bell and lacked recent experience in using Lindamood-Bell was at best “a work in progress”. The district pushes here and said that the record requires the conclusion that by agreeing to start the Seeing Stars/Lindamood-Bell methodology with implementation overseen by an outside literary expert while increasing even further the amount of literacy instruction on top of a host of other important supportive services, it “made a reasonable calculation of how to provide [the student] with meaningful benefits”. The Circuit Court advised that the district “faces an uphill climb” with that.” It pointed out that the District Court impliedly found that “the outside literary expert” would not change its conclusion with respect to whether the IEP was “reasonably calculated to enable the student to make progress”. The Circuit Court indicated that it applied a deferential standard of review for “mixed questions of law and fact” that are “fact dominated”.

Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir. 2016). Under such a standard and the facts here, the Circuit Court said that it could not accept the district’s argument. Regarding this, the Circuit Court pointed to facts in the record which showed that the “outside expert” was “dismissive towards and relatively unfamiliar with the program that she was hired to oversee”.

The “outside expert’s” testimony also indicated that notwithstanding the district’s knowledge of the seriousness of the student’s orthographic processing deficit, the district did not communicate to “the outside expert” when it proposed to hire her that orthographic processing was a 419

challenge to the student let alone that it was his “biggest challenge”. The Circuit Court said that the record also showed that the “outside expert” planned to help the special education teacher stress phonological processing and phonemic awareness in the student’s programming instead of orthographic processing. In summary, the Circuit Court concluded that it saw “no basis” for overturning the district Court’s “too little, too late assessment on the record before it.

Regarding the September 2019 IEP, the district contends that it was justified not to use the Seeing Stars methodology because the student was making only slow progress at the private school that used the Seeing Stars methodology and because the district offered to provide the student with multisensory synthetic phonics instruction as well as an additional hours per week of reading instruction. The District Court disagreed. Regarding this, the Circuit Court again pointed to its deferential review of a District Court’s conclusion with respect to its “fact dominated nature”. In this case, the Circuit Court pointed out that the District Court – which was required to give “due weight” to the Hearing Officer’s determination -- found that the preponderance of evidence supported the Hearing Officer’s conclusion that the student was denied a FAPE by the September 2019 IEP. The rationale was that the student needed programming that would more explicitly target his orthographic processing deficits than SPIRE did due to the acuity of that deficit.

PARENT COUNSELING AND TRAINING L.J. B. v. North Rockland Cent. Sch. Dist., No. 21-CV-7028 (CS), 2023 WL 2692335 (Mar. 29, 2023) Dispute: Should the Court defer to the SRO with respect to the determination that the absence on the IEPs of parent training relative to assisted technology specifically did not deprive the student of a FAPE. Conclusion: Based on the circumstances, the Court concluded that it was appropriate to defer to the SRO’s decision that the absence on the IEPs of parent training relative to assisted technology specifically did not deprive the student of a FAPE. Basis of the Court’s Decision: In this case, the student has been diagnosed with spastic diplegic cerebral palsy and Attention Deficit/Hyperactivity Disorder. The student has speech-language deficits that make “it difficult for his verbal communication to be understood by an unfamiliar listener”. During the 2017-18, 2018-19, and 2019-20 school years, the student was placed in a BOCES program’s “8:1+2 social communication special class, and qualified for extended school year services”. Because of the student’s language deficits, during this period, the CSE consistently recommended assistive technology (AT) for the student as well as an alternative augmentative communication (AAC) device. Over the course of the student’s attendance at the BOCES program, the student used an iPad with different applications to assist in his communication. The applications on the student’s iPad were different but the student was able to use each of the applications with differing levels 420

of success. While the student’s IEP recommended that the student use his AT at home, his ability to do so was “problematic” due to the student’s deletion of applications there and because the student did not always bring the AT device back to school. The student’s IEPs did not specifically recommend parent training and education but had general requirements for that and over the course of the period, the district provided opportunities for parent training and education relative to AT but the parent did not take advantage of this.

Among other things, the parent argued that the SRO erred with respect to the evaluation of student needs relating to AT and ACC devices. More specifically, among other things, the parent argued before the Court that “the SRO’s conclusion that “the lack of parental AT training was a minor error”.

Relative to the question of whether the SRO erred when concluding that “the lack of parental AT training was a minor error” the Court said that the parent’s “contention” that this was the case was “unavailing”. “The SRO correctly noted [the Court said] that the Second Circuit has held that though the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of FAPE, in the ordinary case, that failure, standing alone, is not sufficient to warrant a finding that a FAPE has been denied.” See R.E. v.

New York City Dep’t of Educ., 694 F.3d 167, 191 (2d Cir. 2012). Consistent with this, the Court said that “the [d]istrict’s failure to include AT training for the parents as part of [the student’s] IEPs did not rise to the level of a denial of a FAPE.” The Court also pointed out that, [“as the SRO noted”], while the student’s IEPs did not include recommendations for [parent] AT training specifically”, the IEPs for two of the three years “called for parent training generally, and the parents were repeatedly offered training and counseling [by the BOCES school], which could have included AT training, but they never tried to take [the BOCES school] up on the offer, even after learning went remote”. The Court concluded that it had no basis “to disturb the SRO’s conclusion that the effect of the lack of parental training [regarding AT] in the IEP was minimal”.

PARENT CONCERNS Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) Dispute: Did the IEP Team review existing evaluations including evaluations and information provided by the parents of the student and did the IEP Team consider the concerns of the parents for enhancing the education of their child? And relatedly, did the district provide the student with a FAPE? Conclusion: The Court concluded that IEP Team neither reviewed existing information including evaluations and information provided by the parents of the student nor considered the concerns of the parents for enhancing the education of their child. And relatedly, the district did not provide the student with a FAPE.

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Basis of the Court’s Decision: The IHO determined that the district failed to comply with its procedural and substantive obligations under the IDEA. The SRO disagreed. The Court, found, among other things, that the SRO erred by rejecting a number of the IHO’s credibility determinations. These concerned, among other things, whether the IEP Teams reviewed evaluations provided by the parents; whether the IEPs at issue included the components of the Orton-Gillingham approach; whether “the evaluations plainly indicated that [the student’s] unique needs mandated the inclusion of a specific methodology”; and that because, “the IEPs only included multisensory instruction”, whether the IEP Teams could have meaningfully considered the evaluations or [the parents’] concern”. This being the case, the Court found that the SRO improperly rejected the IHO’s conclusion that the IEP Team did not “review existing evaluative data of the child including … evaluations and information provided by the parents of the child”; did not “consider the concerns of the parents for enhancing the education of the child…” and that the district “substantively violated the IDEA. According to the Court, “the primary dispute at the center of [the] action [was] whether the IEP [T]eam was required to include the Orton-Gillingham methodology or a similar program, in [the student’s] IEP. As indicated above, the Court found that the IHO properly concluded that the IEP Teams did not comply with the IDEA’s procedures in that “the IEP [T]eams did not adequately review the evaluations provided by [the parents]” nor “meaningfully consider [the parent’s] concerns for enhancing the education of their child.”

With respect to the former the Court found that “the [d]istrict ignored the central findings and recommendations of the professional evaluations of [the student]”. More specifically that these evaluations did not only call for multisensory instruction but “stressed the importance of the delivery mechanism by which [the student] would receive that instruction.” In particular, a 2009 evaluation expressed the opinion that “[m]ethodology will be a key factor in improving [the student’s] academic standing and that “[the student] will respond best to instructional programs that provide simultaneous, multisensory programs … and are also systematic and cumulative”.

The subsequent 2013 evaluation, which was prepared by the same evaluator, repeats the above and also stated “[u]nless the student has multimodality teaching, i.e., a combination of visual, auditory, tactile, and kinesthetic, she will most likely have difficulty in academic settings, especially as the academic tasks become more abstract.” Further, a 2015 evaluation states that “[the student] will continue to require intensive, multimodal, research-based learning programs for reading comprehension and math”. In testimony before the IHO this evaluator stressed that “it matter[ed]” how the multisensory or multimodality approach is implemented and that it required “that it should be a program approach… there should be a methodology to it” and there “should be a philosophy to it and one that is applied with really rigorous consistency.”

In contrast to these evaluations, the Court observed in its decision that “the 2014 IEP included, [among other things], the instruction that a multisensory approach to teaching was to be used throughout the school day.” “[T]he 2016 IEP included, among other things, “multisensory 422

instruction that will incorporate the simultaneous use of two or more sensory pathways during teacher presentations and student practice in Special Education classes”. According to the Court, neither the 2014 nor the 2016 IEPs “identified a specific methodology, or program, or structured curriculum format that teachers were obligated to utilize in meeting [the student’s] unique needs”.

The Court concluded that “[t]hus “it [was] evident from the undisputed evaluations, which stress the importance of methodology and the use of the research-based learning programs that the IEP [T]eam failed to consider the evaluations in any meaningful way”. With respect to the SRO’s position that the inclusion of “multi-sensory instruction” in the two IEPs were components of Orton-Gillingham and that this independently supported the conclusion that the district had considered the evaluations, the Court said that “the issue [was] not only the type of instruction but the way in which it [was] delivered”. The Court admitted that “[the district was] not generally required to include a methodology in the IEP, [but that] the district’s own Procedures Manual makes plain that in rare circumstances a student’s individual needs may require a certain methodology if the IEP [T]eam determines that it would be necessary to receive a FAPE. The Court found that had the IEP Team considered the student’s evaluations and their recommendations they “would have recognized that this was one of those rare circumstances”.

With respect to whether “the IEP [T]eams failed to consider [the parents’] concerns, the Court cited testimony to the effect that “the IEP [T]eams failed to respond to their inquiries about which programs, if not Orton-Gillingham, the District was able to provide that would address [the student’s] unique needs”.

The Court also found that the district violated the substantive obligations of the IDEA. The Court said that taking into account the district’s procedural violations “and as the record and the evaluations make clear, [the student] required a specific methodology in order to receive a FAPE”. The Court went on to say that “this is not to say that [the student] necessarily required the Orton-Gillingham methodology but she did require an equivalent methodology that was [] research based, [] systemic, [] cumulative and [] rigorously implemented”. The Court found that the district did not have any such program and that the district’s representation that its “multisensory program in the IEP was illusory”.

The Court concluded that the procedural and substantive violations deprived the student of a FAPE because they “seriously infringed the parents’ opportunity to participate in the IEP formulation process” and “also resulted in the loss of educational opportunity for [the student]”.

The Court also concluded that “as made plain by the evaluations and their recommendations [the student] cannot learn without a consistent and structured approach to multisensory instruction throughout the school day.” Further, the Court went on to state that by [f]ailing to identify a methodology that would ensure that the same approach is consistently utilized throughout the school day by all of [the student’s] instructors necessarily means that [the student] will not have the opportunity to learn as she needs to”.

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PLACEMENT T.C. v. William Floyd Union Free Sch. Dist, 774 F.Supp.3d 583 (E.D.N.Y. 2025) Issue: IEP -- Placement Dispute: Was the student’s specialized reading program appropriate for his needs?

Conclusion: The District Court determined that the student’s specialized reading program was appropriate for the student’s needs Key Take Away In this case, the district’s specialized group and individual reading program did not deny the student a FAPE. Reasoning: The student is 15 years old and has been diagnosed with Specific Learning Disorders and Attention Deficit/Hyperactivity Disorder.

The CSE met in May 2021 for an annual review for the 2021-2022 school year. Because reading was the student’s most challenging area of deficit, the CSE recommended the student receive specialized reading instruction (small group 5:1; five times per week for 40 minutes) and specialized reading instruction (individual; once daily for one hour. The CSE advised that the specialized reading services would be provided by the classroom teacher and also by a contract with a private provider under contract with the district. The IEP specified that during the school term the individual and group instruction would be provided in a “special location” and that the summer reading instruction would be provided at home. The IEP “explicitly” said that the student should continue to participate in an Orton-Gillingham-based reading program.

A later prior written notice issued in May 2021 indicated that the CSE recommended individualized specialized reading instruction at home and group specialized reading instruction at school. This was a change in what the CSE had recommended in the student’s IEP meeting.

On August 16, 2021, the parent advised the district by letter that she disagreed with the CSE’s recommendation, that she was enrolling the student in a private school, and that she was seeking tuition and transportation costs due to “substantive and procedural denials” of a FAPE. As a result, the district scheduled another CSE meeting. This meeting also resulted in a recommendation that the district provide the student with specialized group reading instruction (small group 5:1; five times per week for 40 minutes) and specialized individual reading instruction (individual; once daily for one hour). The parent was unsatisfied with the outcome.

The parent wrote the district again on December 3, 2021, which led to a further CSE meeting in January 2021. At that time, the CSE recommended the same specialized individual and group

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reading program as it did in May and September 2021. The parent continued to be unsatisfied with the outcome of the meeting.

The parent filed a Due Process Complaint on December 6, 2021. The complaint said that the district failed to provide the student with a FAPE. The impartial hearing began in March 2022 and ended in April 2022. The IHO said that the recommended reading program did not provide the student with the necessary reading support during the school day. Because of this and two other issues, the IHO concluded that the CSE did not provide the student with a FAPE. The district appealed the IHO’s decision to the SRO. The parent cross appealed. The district said that the IHO’s conclusion that the district’s specialized reading program did not provide sufficient reading support was “against the evidence”. The parent disagreed. She argued that the prior written notice had unlawfully changed the location of provided services. The SRO said that this change did not deprive the student of a FAPE as the type of services in the prior written notice were “compliant” with state regulation. The parent also argued that the specific “location of services” were not identified in the IEP or prior written notice. Here, the SRO said that this was “merely a procedural violation” which in this case did not impede the student’s right to a FAPE or deprive her of educational benefit. The SRO went on to say that not specifying the location of services also provided the district with appropriate flexibility to provide the student with needed reading services. The parent also stated that the district did not provide the availability of properly certified personnel to provide the student with group reading services. The SRO said that according to the evidence, such providers could be provided to the student. Regarding the specific providers the SRO pointed out that the IEP explicitly provided that the student should continue to participate in an Orton-Gillingham based program as that would be consistent with the “Wilson” method which the student had been using at the private school. The SRO concluded that the IHO’s decision must be reversed.

The parent began a lawsuit in the United States District Court for the Eastern District of New York in November 2022. The parent continued to argue that the prior written notice had changed the location of reading services from what was provided in the IEP and that consideration later decisions was an example of “retrospective testimony”. Additionally, the parent said that the approved specialized reading program did not take into account the fatigue the student suffered in her efforts to read. Finally, the parent argued that the IEP did not specify that the student’s reading teachers would use the Wilson method or be taught by instructors certified in that method. The district said that the IHO’s decision regarding reading was not supported by the record. The district disagreed with the IHO’s conclusion that the group instruction could not be delivered by “certified” Wilson instructors and that the IHO’s conclusion that it could not was based on “inappropriate speculation”.. Finally, the district also said that the IHO failed to take into account the CSE’s September and January IEP changes.

The District Court concluded that the district’s recommended reading services provided the student with a FAPE. The District Court disagreed that the district had made use of retrospective 425

testimony. The District Court concluded that this was not the case as the testimony at the hearing did not go beyond the subject IEP. The District Court agreed with the SRO’s conclusion that the failure of the IEP to be more specific regarding the location of the student’s specialized reading instruction was not a procedural violation and did not deny the student a FAPE. First, the District Court said that there was discussion at the May 2021 CSE meeting of providing the student’s specialized reading instruction after school. Second, the District Court said that the May IEP did identify “home” as the location for summer after school reading services. Third, the District Court said that the parent was informed through the prior written notice that individual reading instruction would be at home and group reading instruction would be at school and so clarified any confusion in the IEP. Fourth, the District Court said that there was testimony at the impartial hearing about the student’s reading fatigue. The District Court admitted that this was not discussed at the CSE meeting but said that it was something that the private school staff should have brought up at that meeting.

The District Court rejected the parent’s claim that it was unclear whether all of the student’s teachers were certified in the Wilson methodology. The District Court explained that the IEP did not mandate that the student be taught by the Wilson method. The District Court also cited to testimony that showed that the student’s reading goals were in fact developed with Wilson based reading instruction in mind and that the student’s IEP indicated that the student should continue to participate in an Orton-Gillingham based program which was consistent with the Wilson program at the student’s private school. Finally, the CSE chair testified that the student’s classroom teacher and private agency personnel would all be certified teachers by New York State regulation. The District Court pointed out that one of the student’s teachers would in fact be certified in the Wilson program. The parent had argued here that this conclusion on the part of the district was “speculative” but the District Court concluded that it was not.

The District Court determined that the SRO carefully considered the information at the CSE meeting about the student’s reading needs at the time the IEP was considered and in conclusion with” relevant regulations and guidelines. The District Court concluded that the SRO’s decision deserved “deference”. Based on this, the District Court concluded that it would defer to the SRO’s conclusion that the district’s specialized reading services was appropriate for the student and provided him with a FAPE. B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) Issue: IEP - placement Dispute: Was the student’s placement appropriate.

Conclusion: The District Court concluded that the student’s placement was not appropriate.

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Key Take Away: A district is required to provide the student with a 1:1 program if such a program is reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.

Reasoning: The student has a significant history of complex psychiatric problems. He receives special education services as a student with an emotional disturbance.

The CSE met in June 2021, to develop the student’s IEP for the 2021-2022 school year. The CSE recommended that, in addition to his classes, the student attend the district’s Twilight program at Hewlett High School for five hours per week and receive related services including 10 hours a week of consultant teacher services. The Twilight program is a “credit recovery” program.

The next day the parent told the district that she intended to place the student at the Fusion Academy, a private out of district school, for the 12-month school year beginning summer 2021 and would seek tuition imbursement.

In July 2021, the parent requested an impartial hearing asserting “procedural and substantive” challenges to the June 2021 IEP. The CSE met again in October 2021. In addition to his classes, the CSE again recommended the Twilight program. The parent filed an amended due process complaint.

The IHO decided that while there were certain procedural difficulties, these did not result in a denial of FAPE. However, the IHO also decided that the Twilight program “was inappropriate because the two IEPs were not reasonably calculated to enable [the student] to make educational progress in light of his unique circumstances, including his severe mental illness”. When considering the student’s program at Fusion and equitable considerations, the IHO granted the parent’s request for tuition reimbursement.

The district appealed to the SRO. The SRO reversed the IHO. The SRO decided that the IHO applied the wrong legal standard, that the IHO erroneously concluded that the student required 1:1 instruction, and that the district’s placement was “reasonable”.

The parent appealed the SRO’s decision to the United States District Court for the Eastern District of New York. Both parties asked the District Court to rule in their favor. The parent argued that the IEP’s recommendation that the student enroll in the Twilight program “was not reasonably calculated to provide educational benefit to [the student] given his circumstances”. The parent’s primary challenge was that the recommended placement failed to provide the student with the individualized attention he needed. The parent argued that the student required 1:1 instruction, that the Twilight program was inappropriate because it was not intended to provide the student with special education for all of his academic program, did not provide the student with “the flexible schedule” that he needed, and “could not keep him on pace to graduate”. The parent

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also argued that the student had a” recorded history” of “refusing to enter the building that housed the Twilight program, which the district offered no “plan to address”.

The district argued that none “of the recommendations incorporated into the IEP required that [the student] be in a 1:1 educational setting per se” and further, that the Twilight program offered the student 1:1 attention because of the presence of a consultant teacher, and also that the IHO had applied the wrong legal standard.

The District Court agreed with the parent that the district “failed to show that the Twilight program was reasonably calculated to enable [the student] to make educational progress and therefore the student was denied a FAPE for the 2021-2022 school year”. The District Court said that the evidence presented “uniformly support [the parent’s] position that the Twilight program would not provide the student “with the educational environment he required to make progress”. The District Court said that the evidence showed that the student did not earn any educational credits before he was placed at Fusion, but that afterwards he showed “tremendous growth both academically and emotionally”. The District Court also pointed to testimony at the hearing that the student needed 1:1 instruction and that sometimes his disability was so severe that he was not able to be in a classroom.

The District Court rejected the district’s claim that none of the recommended evaluations that became a part of the IEP stated that the student required a 1:1 educational setting and said that this “conclusion belies the wealth of testimony” that showed that the student needed 1:1 instruction or he would “regress”. The District Court also rejected Twilight’s ability to provide the required 1:1 assistance because that program’s class size varied from one to nine students.

The District Court also concluded that the consultant teacher would not be providing instruction but would only attend classes with the student and was scheduled for only 10 hours a week. The District Court also said that evidence showed that because of the student’s social anxiety such consultant teacher assistance would do more harm than good as the student would find this “very embarrassing” and “likely lead to school refusal”. The District Court said the evidence showed that while the student had gone to appointments at the school building, he had refused to attend classes there. The District Court also pointed to the fact that the district had not offered “any concrete plan to remedy the situation”. Additionally, although the SRO had concluded that it was reasonable to believe that the student would be able to generalize his conduct as he was attending school in a building at Fusion, the District Court said that such a conclusion was “without support”. The District Court said that the district’s claim that the IEP was appropriate because the student was “improving” at the time of the CSE meeting ignored the fact that at the time of the CSE meeting, the student was receiving a 1:1 educational program and that the evidence showed that he had not experienced any progress in any other setting.

The District Court also said that the SRO had adopted an incorrect legal standard, which was whether the recommended placement was “reasonable” and that the SRO should have looked at “the likelihood of [the student’s] educational progress given [the student’s] unique circumstances”.

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The District Court said that it appeared “plain that contrary to the findings of the SRO, the placement was not adequately designed to address and improve the child’s educational needs” and that therefore the District Court owed “no deference” to the SRO’s conclusion. The District Court further concluded that the SRO’s decision was not “well-reasoned or based on substantially greater familiarity with the evidence and the witnesses than the reviewing court”.

The District Court then looked at the IHO opinion. It pointed out that the IHO’s decision adopted the proper standard, which “properly focused on the likelihood of the student’s educational progress given his “unique circumstances” in the district’s recommended program and whether the IEPs in question were “reasonably calculated to enable the student to make educational progress in light of his unique circumstances”.

The District Court decided that the district failed to provide the student a FAPE. Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – placement, deference to SRO Dispute: Whether the student should be placed in a 6:1:1 classroom or a 12:1:4 classroom.

Conclusion: The District Court determined that the student should be placed in a 12:1:4 program.

Key Take Away: If a CSE reasonably concludes that a student has multiple disabilities and requires a program of habilitation and treatment it may assign the student to a 12:1:4 program, which is the most supported classroom environment in State regulation rather that a 6:1:1 classroom.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed the CSE should have placed the student in a 6:1:1 classroom. 81 The SRO disagreed and concluded that the CSE properly placed the student in a 12:1:4 classroom.82 The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that the student should have been placed in a 6:1:1 classroom. The Magistrate concluded that the SRO’s decision that the student should be placed in a 12:1:4 class was “well-reasoned and owed deference”.

The parent asked the District Court to review the Magistrate’s conclusion. The parent argued that because the IEP showed that the student had “highly intensive” management needs, State 81

A 6:1:1 classroom has six students, one teacher, and one aide.

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A 12:1:4 classroom has twelve students, one teacher and four aides.

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regulation provided that he be placed in a 6:1:1 classroom. The Judge said, however, that the facts also showed that the student had “severe multiple disabilities”, which served as the basis for his special education determination. Because of this, the district concluded that the student “required a program focused preliminary on habilitation and treatment”. 83 The Judge said that the CSE’s conclusions were “not unreasonable” and noted that the parent agreed with them. The Judge pointed out that for such students New York State regulation provides that a 12:1:4 program was also appropriate as it is the most supportive classroom environment in State regulations.

The Judge determined that it would give “deference” to the SRO’s classroom size decision.

Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) Dispute: Whether the district’s recommended placement for a deaf student provided the student a FAPE. Conclusion: The SRO reversed the IHO and determined that the district’s recommended placement for a deaf student did not provide the student with a FAPE. Basis of the SRO’s Decision: The student in this matter “received a diagnosis of bilateral profound sensorineural hear loss as an infant…”. “Around age three the student was fitted for cochlear implants, supported by hearing aids[,]” the later which she had previously used inconsistently. Subsequent to services through early intervention, the student “aged out” of the CPSE program. The student remained in the CPSE program for two additional years at the parent’s expense. The student then attended the “auditory/oral 12:1+1 special class in a special school where for the 2017-18 school year (first grade). “The student attended the same auditory/oral 12:1+1 special class for the 2018-19 school year (second grade) and again for the 2019-20 school year when she repeated second grade”.

An “auditory/oral program” has as its goal “to teach the students to maximize the use of their residual hearing through the utilization of hearing aids or cochlear implants in order to learn spoken language”.

“A CSE convened on January 15, 2020, to formulate the student’s IEP for the second half of the 2019-20 school year and the first half of the 2020-21 school year. The CSE recommended that the student attend the 12:1+1 special class that employed an auditory/oral 12:1+1 teaching methodology” for multiple periods of week for academic subjects. Regarding related services, the CSE recommended OT and five, 30-minute sessions per week of individual speech-language therapy. Among other program components, the CSE also recommended 12-month services.

“Habilitation are health care services that help a person acquire, keep or improve, partially or fully, and at different points in life, skills related to communication and activities of daily living. Habilitative services include physical therapy, occupational therapy, speech-language pathology, audiology and other servicers for people with disabilities.”

83

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The parent filed a due process complaint notice that the CSE “failed to thoroughly evaluate the student and develop an appropriate IEP to meet her needs” and gave notice that she would be attending a private school. As a result of an impartial hearing, an IHO concluded that the district offered the student a FAPE and, more particularly, established “that the recommended 12:1+1 special class using the auditory/oral teaching methodology, along with the related services identified in the January 2020 IEP, were appropriate to address the student’s special education needs”. The IHO denied the parent’s request for direct payment to attend the private school.

In addressing whether the CSE developed appropriate annual goals, the SRO found that such “included criteria, methods, and schedules for measurement, but the student was not mastering the goals nor was she making the progress necessary to advance to the next grade”. The SRO concluded that, “for purposes of this appeal, the evidence showing that progress toward the annual goals was minimal, when considered together with the analysis of the proposed programming described below, is sufficient to find that the student was denied a FAPE”.

The SRO also explained that the IDEA as well as Title II [the ADA] and Section 504 “all address the obligations of school districts to meet the communication needs of students with disabilities and that a school district needs to comply with all three laws, however compliance with one law does not necessarily mean compliance with another”. Regarding this, the SRO pointed out that the ADA includes “a specific effective communication requirement the district is obligated to meet”.

See 28 CFR 35.160; See generally: https://www.ada.gov/resources/effective-communication/.

The SRO explained that “as written, the IDEA does not require that a district ensure that a student with a disability is afforded the opportunity to communicate within the school setting as effectively as his or her nondisabled peers”. While the SRO explicitly said that the SRO is not tasked with determining whether a district is properly complying with its effective communication requirements, he did conclude that “there is nothing in the IDEA that precludes districts from considering the effective communication requirements found in Title II as part of the IEP development process, especially when the needs of the student primarily relate to the student’s ability to communicate”. Further, the SRO said that while not necessarily in the particular case, “in general, the services, devices, technologies, and methods for providing effective communication that are auxiliary aids and services under Title II could also be provided under the IDEA as part of a FAPE”. “For people who are deaf, have hearing loss, or are deaf-blind, [the Department of Justice’s regulations says that] Title II-related auxiliary aids and services include, [but are not limited to], providing a qualified notetaker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; written materials; or a printed script of a stock speech (such as given on a museum or historic house tour). A “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary”. Id. According to the Department of Justice regulations, aids and services also include “a wide variety of technologies including 1) assistive listening systems and devices; 2) open captioning, closed captioning, real-time captioning, and closed caption decoders and devices; 3) telephone handset amplifiers, hearing431

aid compatible telephones, text telephones (TTYs) , videophones, captioned telephones, and other voice, text, and video-based telecommunications products; 4) videotext displays; 5) screen reader software, magnification software, and optical readers; 6) video description and secondary auditory programming (SAP) devices that pick up video-described audio feeds for television programs; 7) accessibility features in electronic documents and other electronic and information technology that is accessible (either independently or through assistive technology such as screen readers). Real-time captioning (also known as computer-assisted real-time transcription, or CART) is a service similar to court reporting in which a transcriber types what is being said at a meeting or event into a computer that projects the words onto a screen. This service, which can be provided on-site or remotely, is particularly useful for people who are deaf or have hearing loss but do not use sign language”. Id. Importantly, the SRO pointed out that U.S. Department of Education guidance provides that “the Secretary believes it is important that State and local educational agencies, in developing an IEP for a child who is deaf, take into consideration” a number of factors including “the child and family’s preferred mode of communication”.

The SRO concluded that Taking the above in consideration, while recognizing that the CSE operates under the authority of the IDEA, there is certainly some support for the notion that a CSE would be well served to consider the Title II requirements concerning the provision of effective communication to individuals with disabilities consonant with those provided to other persons when developing an IEP for a student for whom communication needs are paramount, including those with a classification of deafness, in order to ensure that such a student’s communication and related language needs will be addressed with appropriate special education recommendations.

With respect to the 12:1+1 auditory/oral recommended methodology, according to the SRO, the evidence showed that it was not sufficient to provide the student with a FAPE and the program staff realized that and would have liked the student to be in a” sign support program” as an instructional methodology for the purpose of facilitating “the student’s production of expressive language and cognitive development:” 84. However, the CSE did not recommend this program because the parent, after observing the class, “did not believe the program would be appropriate for the student”.

The SRO said that the district could not just continue to recommend a program that is not appropriate for a student just because the program is consistent with the parent’s preferred communication needs. The SRO concluded that “it is clear that any program recommended for a deaf student must provide appropriate programming, within the parent’s preferred It appears that the sign support program in this case used “Signed English” as opposed to American Sign Language.

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communication mode, to address the communication and language needs of a deaf or hard of hearing student so that he or she can make appropriate progress in the curriculum in light of his or her unique circumstances”. Upon review, the SRO concluded that “it appears that the district has honored the communication preference of the parent but has not yet fully considered the student’s language and communication needs nor considered what may be provided further to ensure effective communication for the student”. With respect to this, the SRO pointed out that “[a]n option that was not explored by the January 2020 CSE was to make modifications to the student’s curriculum” and also to provide “supplemental aids and services” 85. The district had not modified the programming based on the fact that the programing in the auditory/oral program “was standardized for the other students”. The SRO made it clear here that “[t]he programming must fit the student and although it appears to be a very good program in general with a caring staff, [he]was concerned in this instance that the student was being shortchanged to a degree in order to fit the available program”.

Consistent with this, based on the hearing record the SRO concluded “that the student needed more than what was being provided by the district to have effective communication and to address her language needs as a deaf student”. The SRO pointed out that the district “rather than identifying other ways to meet the student’s needs through the variety of special education services at the CSE’s disposal to recommend, is arguing that the sign support program was the next program the CSE would have recommended for the student due to her lack of progress but because the parent’s preferred modality for the student was the auditory/oral program the district could not recommend such support and thus the lack of progress the student was making was not due to any underlying problems in the recommended 12:1+1 special class in the auditory/oral program but due to the fact that the parent would not allow the student to be placed in the sign support program”.

The SRO said that the IHO “appeared to partially fault the parent’s preferred communication mode” “[i]nstead of focusing on what the district could provide to the student within the auditory/oral program that would ensure the student’s access to effective communication sufficient to meet her unique learning and social needs”. The SRO concluded that this “is not a valid line of reasoning due to the Title II requirements…”.

The SRO found that “[r]ather that supporting a finding that the district met its burden in providing the student with a FAPE, the evidence in the hearing record demonstrates that the district continued to recommend the same program that had resulted in minimal progress toward the student’s annual goals, rather than modify the program with further supports aimed at the parent’s preferred auditory oral communication mode for the student”. Finally, the SRO found that “[t]he totality of the hearing record shows that despite the January 2020 CSE’s

Though it does appear in another section of the decision that the IEP included some supplementary aids and services. See Decision at p. 24.

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recommendations the student was unable to sufficiently access the curriculum and make progress” because the district “did not sufficiently address the student’s needs”.

Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) Dispute: Whether the district’s recommended placement for a deaf student provided the student a FAPE. Conclusion: The SRO reversed the IHO and determined that the district’s recommended placement for a deaf student did not provide the student with a FAPE. Basis of the SRO’s Decision: The student in this matter “received a diagnosis of bilateral profound sensorineural hear loss as an infant…”. “Around age three the student was fitted for cochlear implants, supported by hearing aids[,]” the later which she had previously used inconsistently. Subsequent to services through early intervention, the student “aged out” of the CPSE program. The student remained in the CPSE program for two additional years at the parent’s expense. The student then attended the “auditory/oral 12:1+1 special class in a special school where for the 2017-18 school year (first grade). “The student attended the same auditory/oral 12:1+1 special class for the 2018-19 school year (second grade) and again for the 2019-20 school year when she repeated second grade”.

An “auditory/oral program” has as its goal “to teach the students to maximize the use of their residual hearing through the utilization of hearing aids or cochlear implants in order to learn spoken language”.

“A CSE convened on January 15, 2020, to formulate the student’s IEP for the second half of the 2019-20 school year and the first half of the 2020-21 school year. The CSE recommended that the student attend the 12:1+1 special class that employed an auditory/oral 12:1+1 teaching methodology” for multiple periods of week for academic subjects. Regarding related services, the CSE recommended OT and five, 30-minute sessions per week of individual speech-language therapy. Among other program components, the CSE also recommended 12-month services.

The parent filed a due process complaint notice that the CSE “failed to thoroughly evaluate the student and develop an appropriate IEP to meet her needs” and gave notice that she would be attending a private school. As a result of an impartial hearing, an IHO concluded that the district offered the student a FAPE and, more particularly, established “that the recommended 12:1+1 special class using the auditory/oral teaching methodology, along with the related services identified in the January 2020 IEP, were appropriate to address the student’s special education needs”. The IHO denied the parent’s request for direct payment to attend the private school.

In addressing whether the CSE developed appropriate annual goals, the SRO found that such “included criteria, methods, and schedules for measurement, but the student was not mastering the goals nor was she making the progress necessary to advance to the next grade”. The SRO concluded that, “for purposes of this appeal, the evidence showing that progress toward the 434

annual goals was minimal, when considered together with the analysis of the proposed programming described below, is sufficient to find that the student was denied a FAPE”.

The SRO also explained that the IDEA as well as Title II [the ADA] and Section 504 “all address the obligations of school districts to meet the communication needs of students with disabilities and that a school district needs to comply with all three laws, however compliance with one law does not necessarily mean compliance with another”. Regarding this, the SRO pointed out that the ADA includes “a specific effective communication requirement the district is obligated to meet”.

See 28 CFR 35.160; See generally: https://www.ada.gov/resources/effective-communication/.

The SRO explained that “as written, the IDEA does not require that a district ensure that a student with a disability is afforded the opportunity to communicate within the school setting as effectively as his or her nondisabled peers”. While the SRO explicitly said that the SRO is not tasked with determining whether a district is properly complying with its effective communication requirements, he did conclude that “there is nothing in the IDEA that precludes districts from considering the effective communication requirements found in Title II as part of the IEP development process, especially when the needs of the student primarily relate to the student’s ability to communicate”. Further, the SRO said that while not necessarily in the particular case, “in general, the services, devices, technologies, and methods for providing effective communication that are auxiliary aids and services under Title II could also be provided under the IDEA as part of a FAPE”. “For people who are deaf, have hearing loss, or are deaf-blind, [the Department of Justice’s regulations says that] Title II-related auxiliary aids and services include, [but are not limited to], providing a qualified notetaker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; written materials; or a printed script of a stock speech (such as given on a museum or historic house tour). A “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary”. Id. According to the Department of Justice regulations, aids and services also include “a wide variety of technologies including 1) assistive listening systems and devices; 2) open captioning, closed captioning, real-time captioning, and closed caption decoders and devices; 3) telephone handset amplifiers, hearingaid compatible telephones, text telephones (TTYs) , videophones, captioned telephones, and other voice, text, and video-based telecommunications products; 4) videotext displays; 5) screen reader software, magnification software, and optical readers; 6) video description and secondary auditory programming (SAP) devices that pick up video-described audio feeds for television programs; 7) accessibility features in electronic documents and other electronic and information technology that is accessible (either independently or through assistive technology such as screen readers). Real-time captioning (also known as computer-assisted real-time transcription, or CART) is a service similar to court reporting in which a transcriber types what is being said at a meeting or event into a computer that projects the words onto a screen. This service, which can be provided on-site or remotely, is particularly useful for people who are deaf or have hearing loss but do not use sign language”. Id.

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Importantly, the SRO pointed out that U.S. Department of Education guidance provides that “the Secretary believes it is important that State and local educational agencies, in developing an IEP for a child who is deaf, take into consideration” a number of factors including “the child and family’s preferred mode of communication”.

The SRO concluded that Taking the above in consideration, while recognizing that the CSE operates under the authority of the IDEA, there is certainly some support for the notion that a CSE would be well served to consider the Title II requirements concerning the provision of effective communication to individuals with disabilities consonant with those provided to other persons when developing an IEP for a student for whom communication needs are paramount, including those with a classification of deafness, in order to ensure that such a student’s communication and related language needs will be addressed with appropriate special education recommendations.

With respect to the 12:1+1 auditory/oral recommended methodology, according to the SRO, the evidence showed that it was not sufficient to provide the student with a FAPE and the program staff realized that and would have liked the student to be in a” sign support program” as an instructional methodology for the purpose of facilitating “the student’s production of expressive language and cognitive development:” 86. However, the CSE did not recommend this program because the parent, after observing the class, “did not believe the program would be appropriate for the student”.

The SRO said that the district could not just continue to recommend a program that is not appropriate for a student just because the program is consistent with the parent’s preferred communication needs. The SRO concluded that “it is clear that any program recommended for a deaf student must provide appropriate programming, within the parent’s preferred communication mode, to address the communication and language needs of a deaf or hard of hearing student so that he or she can make appropriate progress in the curriculum in light of his or her unique circumstances”. Upon review, the SRO concluded that “it appears that the district has honored the communication preference of the parent but has not yet fully considered the student’s language and communication needs nor considered what may be provided further to ensure effective communication for the student”. With respect to this, the SRO pointed out that “[a]n option that was not explored by the January 2020 CSE was to make modifications to the student’s curriculum” and also to provide “supplemental aids and services” 87. The district had not modified the programming based on the fact that the programing in the auditory/oral program “was standardized for the other students”. The SRO made it clear here that “[t]he programming must fit the student and although it appears to be a very good program in general It appears that the sign support program in this case used “Signed English” as opposed to American Sign Language.

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with a caring staff, [he]was concerned in this instance that the student was being shortchanged to a degree in order to fit the available program”.

Consistent with this, based on the hearing record the SRO concluded “that the student needed more than what was being provided by the district to have effective communication and to address her language needs as a deaf student”. The SRO pointed out that the district “rather than identifying other ways to meet the student’s needs through the variety of special education services at the CSE’s disposal to recommend, is arguing that the sign support program was the next program the CSE would have recommended for the student due to her lack of progress but because the parent’s preferred modality for the student was the auditory/oral program the district could not recommend such support and thus the lack of progress the student was making was not due to any underlying problems in the recommended 12:1+1 special class in the auditory/oral program but due to the fact that the parent would not allow the student to be placed in the sign support program”.

The SRO said that the IHO “appeared to partially fault the parent’s preferred communication mode” “[i]nstead of focusing on what the district could provide to the student within the auditory/oral program that would ensure the student’s access to effective communication sufficient to meet her unique learning and social needs”. The SRO concluded that this “is not a valid line of reasoning due to the Title II requirements…”.

The SRO found that “[r]ather that supporting a finding that the district met its burden in providing the student with a FAPE, the evidence in the hearing record demonstrates that the district continued to recommend the same program that had resulted in minimal progress toward the student’s annual goals, rather than modify the program with further supports aimed at the parent’s preferred auditory oral communication mode for the student”. Finally, the SRO found that “[t]he totality of the hearing record shows that despite the January 2020 CSE’s recommendations the student was unable to sufficiently access the curriculum and make progress” because the district “did not sufficiently address the student’s needs”.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the student should be placed in a 6:1+1 special class or a 12:1+4 special class.

Conclusion: The Court upheld the SRO and determined that the additional and type of support available in a 12:1+4 special class placement was appropriate for the student.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The district’s IEP for the 2018-19 school year changed the student’s classification from a student with a traumatic brain injury to a student with multiple disabilities. The IEP also recommended 437

placement in a 12:1+4 special class; which was the class size set forth in State regulation for students with multiple disabilities.

The parent took the position that a classification of traumatic brain injury was a better fit than a student with multiple disabilities. Consistent with this, the parent argues that in accordance with applicable State regulation relating to appropriate class size for students with a traumatic brain injury, the IEP should have instead recommended a 6:1+1 classroom placement.

In evaluating the student and the district’s arguments the Court had earlier found that differences in classification were not relevant for a FAPE but that none the less, a classification of a student with multiple disabilities was appropriate rather than a student with a traumatic brain injury.

Aside from reciting that earlier conclusion, the Court pointed out that the SRO had “reasoned that it [was] no mistake that the adult to student ratio required in a 6:1+1 special class and a 12:1+4 special class [was] a similar ratio, albeit with a greater variety in the type of school personnel typically found working with a student in the 12:1+4 special class setting”. Regarding this, the Court said that this was “the very type of providers that [the student] require[d] and are not found in the definition of a 6:1+1 special class”. Further, the Court pointed to the SRO’s conclusion that the student “benefitted from class monitoring for injury protection, aspiration, allergen exposure, and severe allergic reaction; reduced lighting and environmental noise, as well as the use of sunglasses and noise cancelling headphones” which the Court said “mad[e] the additional adults in a 12:1+4 classroom especially appropriate”.

The Court advised that it had “reviewed the record and found [that] the SRO’s conclusion [was] supported by a preponderance of the evidence”, and thus it was appropriate to defer to her conclusion.

Melendez v. Banks, et al, 21-CV-1243 (MKB), 2023 WL 6283108 (E.D.N.Y. Sept.

26, 2023) Dispute: Whether the student’s placement in a 12:1:4 special class as opposed to a 6:1:1 special class was appropriate.

Conclusion: The Court upheld the SRO and concluded that applicable state regulations required that the student be placed in a 12:1:4 special class.

Basis of the SRO’s Decision: The student in this case has been diagnosed with multiple impairments, including quadriplegic cerebral palsy, epileptic seizures, and cortical vision impairment. During the 2019-20 school year at issue the student was 10 years old.

The CSE developed an IEP for the student on May 30, 2019. Among other things, the IEP recommended that the student be placed in a 12:1:4 special class with related services as well as

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a full-time 1:1 health and transportation paraprofssional.88 The parent disagreed and asserted that the student should be placed in a 6:1:1 special class 89; this on the basis that, among other things, the student had “highly intensive management needs” consistent with the language of that specific placement. See 8 NYCRR 200.6(h)(4)(ii)(a). Upon review, the IHO concluded that a 6:1:1 placement was the appropriate placement for the student as he concluded that the 12:1:4 placement was “too large,” that the ratio of one teacher to 12 students “was not sufficiently restrictive”, and that the additional support staff in the 12:1:4 placement “would not compensate for the fact that there was only 1 teacher for 12 students”. Upon his review, the SRO reversed the IHO’s decision, advising that “based on [the student’s] diagnoses, [the student should be characterized] as a student with severe multiple disabilities [and that] [t]he applicable state regulation provides that the maximum class size for those students with severe multiple disabilities, whose programs consist primarily of habitation and treatment [the latter which the SRO found to be appropriate here] [should] not exceed twelve students”. The SRO pointed out that [i]n addition to the teacher, the staff/student ratio shall be one staff person to three students [and] [t]he additional staff may be teachers, supplementary school personnel and/or related services providers”. See 8 NYCRR 200.6(h)(4)(iii). “Based on [the student’s] classification as a student with severe multiple disabilities, the SRO determined that a 12:1:4 class was the maximum classroom size that [the student] could be assigned to pursuant to the IDEA and state law” and found that the hearing record supported the CSE’s decision. Regarding the student’s “highly intensive needs” focused on by the parent, the SRO found that this was “not in dispute,” that the IEP “included a significate number of management supports and strategies to address those needs”, and that the student’s “highly intensive needs were due to his severe multiple disabilities”.

The Court said that the SRO’s conclusion was “thorough and careful, supported by the record and relevant law and [was] entitled to deference”. The Court also agreed with the defendant that the case was “on all fours” with a recent Court of Appeals summary order. See Carrillo v. New York City Dep’t of Educ., No. 21-CV-2639, 2023 WL 3162127 (2d Cir. May 1, 2023). The Court summarized and discussed Carrillo as follows: … the Second Circuit [in Carrillo] affirmed the decisions of the CSE, IHO, SRO, and district court that a 12:1:4 classroom was the appropriate placement for a child diagnosed as having severe multiple disabilities. The [Cirrillo] Court noted that the regulatory framework lays out a continuum of services under which each successive category of classroom provides an increasing … level of support…. The [Second Circuit] Court found that under the continuum of classroom options, the 12:1:4 [was] the most supportive classroom available, and that students whose needs justify placement in a high support 88 Such a placement provides for a special class composed of twelve students, one special education teacher, and one special group paraprofessional for every three students.

The shorthand 6:1:1 refers to a classroom with a maximum of six students, at least one licensed special education teacher, and at least one additional teacher or paraprofessional.

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classroom such as a 12:1:4 class would also be expected to have needs sufficient for placement in a lower-support classroom such as a 6:1:1. Since the child [in Carrillo] had both severe multiple disabilities, which require placement in the most supportive classroom on the continuum, and highly intensive management needs, for which a less supportive environment is appropriate, the [Second Circuit] Court concluded that the CSE did not err in assigning the child to the classroom setting required by her most serious diagnosis…[With regard to the] parent’s argument that because the child has highly intensive management needs she requires a 6:1:1 classroom [Carrillo said] was not supported by the plain language of the regulation. See 8 NYCRR 200.6(h)(4)(iii).

The District Court also addressed the fact that the parent preferred a 6:1:1 special class placement for the student. The Court pointed out that assigning the student to a 6:1:1 placement was inconsistent with state regulation at 8 NYCRR 200.6(h)(4)(iii). It also cited [again to Carrillo for the proposition that a parent’s preference for a different placement is not controlling since the IDEA guarantees an appropriate education not one that provides everything that might be thought desirable by loving parents”. See Carrillo, 2023 WL 3162127 at *3, quoting Walczak v.

Florida Union Free Sch. Dist., 142 F.3d Walczak, 142 F.3d 119, 132 (2d. Cir. 1998).

J.D. and L.D. v. Rye Neck Union Free Sch. Dist., 22 CV 3039 (VB), 2023 WL 1797170 (S.D.N.Y. Feb. 7, 2023) Dispute: Whether the student needed special classes in order to receive a FAPE. Conclusion: The Court agreed with the IHO and the SRO that the student did not need special classes in order to be provided with a FAPE. Basis of the Court’s Decision: In this case, the parents challenged the IHO and SRO decisions that the student did not need a special class placement in order to be provided a FAPE. The CSE initially met on May 21, 2019, to develop an IEP for the 2019-20 school year when the student would be in the third grade. The CSE recommended that the student receive “an integrated co-teach class (ICT) for math and English language arts (ELA) and a general education class for science and social studies”. Additionally, the CSE recommended supports for the student in the form of specialized reading instruction, specialized math instruction, and speech language therapy. Because of regression during breaks, the “CSE also recommended specialized math instruction for six weeks during the summer”. Finally, the CSE recommended that the student “receive encouragement to attempt tasks she perceived as difficult”. Subsequent to that CSE meeting, the parents made arrangements for a private neuropsychological evaluation, which was conducted in early June 2019. The CSE met again on September 3, 2019, to discuss the parents’ concerns and the results of the private evaluation. As a result of this meeting, “the CSE continued to recommend [that the student] be placed at a district school, in an ICT class for math and ELA 440

and a general education class for science and social studies”. However, the CSE also “adjusted” the May IEP as a result of the parent concerns and the private evaluation. These adjustments included “a teaching assistant cluster for science and social studies, increased specialized reading instruction” and modification in part of the manner in which the student would receive speechlanguage therapy. The CSE also added additional supports to those which were included in the May IEP. The parents were dissatisfied with the September IEP and placed the student at a private school.

The CSE met on May 20, 2020, to develop the student’s IEP for the 2020-21 school year when the student would be in the fourth grade and during which time the student continued to be enrolled at the private school. “The CSE again recommended that the student be placed at a district school in an ICT class for math and ELA and a general education class for science and social studies with a teaching assistant cluster”. The CSE recommended additional intensive reading services and the same level of math and speech-language therapy as in the previous IEP. In addition to continuing provision of math and reading instruction during part of the summer. The CSE recommended the same supplemental aids and services as it had for the most recent IEP for the 2019-20 school year. The parents disagreed with the IEP. The CSE met again on August 28, 2020.

At that time the CSE added 30 minutes of counseling once a week and additional testing prior to making any other recommendations. According to notes from the meeting, also at that time, the CSE offered the parent the option of a special class program, which the parent did not agree to because of the lower functioning level of the students in that class. As a result of the additional testing and a reading assessment, the CSE met on October 2, 2020, and recommended that the student “be placed in a special class for math and ELA, with direct reading instruction using a” particular methodology. Math goals were also adjusted and “[t]he CSE continued to recommend a general education class for science and social studies with a teaching assistant cluster”. “[T]he CSE retained the [existing] supports and added a recommendation that spelling be waived on writing assignments”.

The parents had filed due process complaint notices for both the 2019-20 and 2020-21 school years. They were consolidated and after hearing, the IHO determined that the district provided the student with a FAPE for both school years. The SRO affirmed.

The parents claim upon judicial review that the district failed to provide “substantively adequate IEPs for both school years” and asserted that the student needed a full complement of special education class “to progress”. The Court determined that the IHO and SRO’s decisions were entitled to deference. On its own review, the Court also concluded that “the substantive adequacy of the IEPs was supported by a preponderance of evidence in the record”.

Regarding the 2019-20 school year, as indicated above, both IEPs recommended placing the student at a district school in an ICT class for math and ELA, a general education class for science and social students, specialized math and reading instruction, speech-language therapy and several services and supports. The Court pointed out that in making these recommendations, 441

the CSE relied on materials including a private evaluation, progress reports from the student’s teachers and the speech-language therapist, and the results of district assessments.

The Court relied in part on the fact that the evidence showed that when the student was in the second grade in a general education class and receiving fewer services and supports, she had made “considerable progress.” The Court said that “[t]his evidence supports a finding that the IEPs for 2019-20, which offered [the student] more support than she had in the second grade would enable her to make meaningful progress”. The Court further pointed out that “the SRO concluded – and the IHO credited testimony that – [the student’s needs] could be met by the district’s recommended program and services”. “[G]iving due weight to the SRO decision and the IHO’s credibility assessments, and based on the Court’s independent examination of the record, the Court conclud[ed] that the district’s recommended programs and services were reasonably calculated to enable [the student] to access educational benefits in the least restrictive environment consistent with her needs, and therefore provided [the student] with a FAPE”.

With respect to the 2020-21 school year, as indicated above, the first two IEPs “continued to recommend an ICT class in math and ELA and a general education class for science and social studies with several services and supports”. As also indicated, after further testing, the CSE changed its conclusion and determined that the student “would benefit from a more intensive program to develop her reading and decoding skills as well as additional support in math”. As a consequence, the CSE changed its recommendation to a special class for math and ELA, “with intensive direct reading instruction” using the same methodology as the private school. The Court pointed out that “[i]n developing its recommendations, the CSE considered evidence including progress reports from [the private school], the results of assessments performed by the district and [the private school, and prior educational and psychological evaluations”.

The Court pointed out that “[t]he evidence before the CSE showed that [the student] was making some progress in her small classes at [the private school]” but that she “continued to struggle with decoding, fluency, spelling, written expression, math word problems, recall of math facts, listening comprehension, and following multi-step directions”. “The progress reports [also] indicated that [the student] experienced some difficulty with concepts and skills in social studies and science, although she showed improvement in several areas”. The evidence further showed that the student “consistently followed classroom instructions and maintained attention”.

Representatives from the private school “advised” the CSE that the student “benefits from a high level of teacher support in reading and needs prompts to use spelling skills and to expand her written expression”. Regarding math, the private school representative “reported [the student] benefits from direct teaching and modeling in math and multisensory approach and needs repetition, re-teaching and spiraling review of previously taught concepts”. Further, “[c]iting testimony from several witnesses the IHO found credible, [the court pointed out that] the SRO

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and IHO concluded [that the student’s] particular needs could be met by the district’s recommended programs and services” for that school year.

The Court reported that a parent evaluator/expert “— whose testimony the IHO found only somewhat credible – [presented the opinion] that [the private school’s] special class would be a more appropriate placement”. Importantly, the Court said that this did “not mean the district’s proposed program was inappropriate”. Regarding this, the Court explained that “[a]though the parents understandably, want the best possible program for their child, the IDEA guarantees only a program that confers educational benefits not one that maximizes the student’s potential or provides everything that might be thought desirable by loving parents.” Walczak v. Fla. Union Free Sch. Dist, 142 F.3d 119, 132-33 (2d 1998).

The Court concluded that in this school year as well, there was “sufficient evidence here to find [that the student] could receive educational benefits without a full-time special education program. The Court found that “[a]ccordingly, given the due weight to the SRO decision and the IHO’s credibility assessments, and based on the Court’s independent examination of the record [] the district’s recommended program and services for the 2020-21 school year were reasonably calculated to allow [the student] to access educational benefits in the least restrictive environment and therefore provided [the student] a FAPE”.

Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) Dispute: Whether the recommended placement for the student was appropriate.

Conclusion: The Court of Appeals upheld the decision of the IHO, the SRO, and the District Court that the CSE’s recommended placement of the student in a 12:1+4 classroom provided a FAPE. Basis of the Second Circuit’s Decision: The student “is a nonverbal and non-ambulatory student with significant disabilities”. As part of the development of the student’s IEP, the CSE “classified the student’s disability as multiple disabilities, assigned special education programs and services, and recommended that [the student] be placed in a 12:1:4 classroom 90”. Such a classroom structure “is the most supportive classroom environment contemplated by the applicable New York regulations”.

The parents asserted that the placement violated the student’s right to a FAPE, “provided notice of their intent to unilaterally place [the student] in a private [school … ] and filed a due process complaint [notice] seeking reimbursement of tuition and other costs related to the student’s attendance at the private [school]”. The parents preferred a 6:1+1 placement 91.

After a hearing, the IHO issued a “thorough” decision finding that the CSE’s proposal provided the student with a FAPE. The parents appealed that decision to the State Review Officer (SRO), 90 91

That is, a classroom placement of 12 students, I licensed special education teacher, and three paraprofessionals.

That is a classroom placement of six students, one licensed special education teacher and one paraprofessional.

443

who “issued a detailed thirty-four-page decision finding that the IHO had correctly determined that the student was offered a FAPE”. The parents filed an action in District Court challenging the SRO’S decision. The District Court affirmed that the 12:1+4 placement provided the student with a FAPE. On appeal to the Second Circuit, the parents restated their argument that the district failed to provide the student with a FAPE because the district placed the student in a 12:1:4 placement instead of a 6:1+1 placement, which was desired by the parents. According to State regulations relating to continuum of services (see 8 NYCRR 200.6) a 12:1+4 placement is “appropriate for students with severe multiple disabilities, and whose programs consist primarily of habilitation and treatment”. See 8 NYCRR 200.6(h)(4)(iii). According to the continuum of services regulations, a 6:1+1 placement “is appropriate for students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention”. See 8 NYCRR 200.6(h)(4)(ii)(a).

The Second Circuit stated that the CSE found, “based on [the student’s] individual needs, that [the student] should be placed in a 12:1+4 classroom”. Moreover, the Second Circuit said that “the IHO and SRO appropriately considered the options available under [the continuum of services regulations] and agreed that a 12:1+4 classroom complied with the IDEA and with New York regulations”. Further, the Second Circuit said that “[t]he SRO found that the 12:1+4 special class ratio for students with severe multiple disabilities … [was] precisely the type of programming that [would] address this student’s unique needs”. The Second Circuit said that “[t]he CSE, the IHO, and the SRO all concluded that [the student’s] IEP was tailored to meet the unique needs of [the student]”.

The Second Circuit pointed out that the District Court concluded that the student had “highly intensive management needs that require a high degree of individualized attention and intervention”. The parents argued that “because the student [had] highly intensive management needs, [the student] “requires a 6:1+1 classroom, and that it was error for the CSE to place the student in a 12:1+4 classroom”.

The Second Circuit disagreed with the parents’ argument and found that it was “not supported by the plain language of the regulation”. The Second Circuit said that the classroom defined by the continuum of services regulations “are not mutually exclusive” and that the student has highly intensive management needs and severe multiple disabilities, and received programming that is focused on habilitation and treatment”. The Second Circuit said that the regulation “describes a continuum of classroom environments and students, like [the student here], whose needs justify placement in a high-support [12:1+4] classroom … would also be expected to have needs sufficient for placement in a lower-support classroom”.

The Second Circuit stressed that “[t]he CSE determined based on [the student’s] individual needs that [the student] should be placed in a 12:1+4 classroom” and that “[n]othing about the regulations prohibits this”. The Second Circuit said that “[t]he CSE met its obligation to carefully 444

consider the student’s needs, and developed a plan that would provide [the student] with a FAPE”.

The Second Circuit reminded the parents that a “parents’ preference for a different placement was not controlling” and that “[t]he IDEA guarantees … an appropriate education, not one that provides everything that might be thought desirable by loving parents”. See Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 132 (2d Cir. 1998).

The Second Circuit said that “[d]eference to the local decision-makers is particularly appropriate in this case because both the IHO and SRO issued thorough and careful decisions agreeing that the IEP offered [the student] a FAPE ….” Walczak, 142 F.3d at 129. And the Second Circuit pointed out that “[w]e must always be mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy”. Id. “Applying these standards, [the Second Circuit said that] the District Court properly affirmed the SRO’s decision”. The Second Circuit also pointed out the District Court’s observation that “the SRO like the IHO before him, concluded that the child suffered from so many different disabilities that [the student’s] needs were best served by being in the 12:1+4 classroom”. And, the Second Circuit said, “the SRO specifically found that the presence of additional adults in the classroom was most likely to provide precisely the type of programming that will address the student’s unique needs”.

With the above in mind, the Second Circuit found “no error” in the District Court’s conclusion.

E.H. v. New York City Dep’t of Educ., 164 F. Supp.3d 539, 551-54 (S.D.N.Y. 2016) Dispute: Whether the district’s recommendation of a 6:1:1 placement was predetermined.

Conclusion: The Court determined that the IHO was correct and that the SRO erred when the IHO determined that the student’s placement in a 6:1:1 class was predetermined.

Basis of the Court’s Decision: The student is an eleven-year-old student with autism. For several years, prior to the school year in question, the student had been enrolled in a private year-round, school that specializes in serving students with neurodevelopmental delays such as Autism Spectrum Disorder. The student’s teacher to student ratio (level of support) at the private school is 2:1 92.

The parents are seeking tuition reimbursement for the student.

The CSE met as a part of its annual review. Among other things, the CSE recommended that the student be placed in a 6:1:1 93 classroom. In part because of that, the parent subsequently gave 92

This is one student and 2 teachers.

93

This is six students, one teacher and four paraprofessionals.

445

notice to the district that the student would be reenrolled in the private school. An initial and amended due process complaint notice was filed. The IHO found in favor of the student with respect to the parent’s claim that the student’s 6:1:1 placement was predetermined and that as a result the parent did not have a meaningful opportunity to participate in the CSE meeting. The SRO reversed the IHO’s decision and held that the CSE did not predetermine the student’s placement.

“By statute, reviewing courts afford such deference via application of the preponderance standard. 20 U.S.C. 1415(i)(2)(C)(iii). However, the preponderance standard does not alone capture precisely how much deference to apply, when to apply more or less, and to whom. As between the conflicting opinions of an IHO and SRO, the reviewing federal court is generally required to defer to the SRO. See M.H.v, New York City Dep’t of Educ., 685 F. 3d 217, 246 (2d 2012). Conversely, where “the SRO’s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s conclusion unpersuasive even after appropriate deference is paid, to consider the IHO’s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgement” Id. “These inquiries ultimately translate to a review of the persuasiveness of the SRO’s decision. Id at 244. However, the persuasive inquiry “must also be colored by an acute awareness of institutional competence and role” Id. “mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Bd. of Educ. v Rowley, 458 U.S. 176, 206, 208) (1982).

“Predetermination is inconsistent with the goals of the IDEA, which envision a collaborative process in developing a uniquely suitable educational placement for each child. See 20 U.S.C. 1415(b)(1); see also 34 CFR 300.322; 8 NYCRR 200.5(d). Predetermination therefore amounts to a procedural violation of [the IDEA at] Section 1415 and can rise to the level of a substantive harm and therefore deprive a child of a FAPE, where the child’s parents are effectively deprived of meaningful participation in the IEP process”. “However, where a [p]arent has actively and meaningfully participated in the development of an IEP, courts have rejected predetermination claims”. The Court stressed that “[t]he CSE may consider and reject the [p]arent’s point of view, but it may not deprive the [p]arent of meaningful participation by refusing to consider the parent’s concerns.”.

“The IHO found no evidence that the CSE considered a more [supportive] setting for [the student than 1 6:1:1 setting and], in doing so denied the [p]arent of an opportunity to meaningfully participate, and the violation rose to the level of a denial of a FAPE”. “The SRO disagreed, finding that evidence in the record shows that the parents attended and participated in the [] CSE meeting, and that the IEP shows the CSE considered other options before choosing the 6:1:1 placement.”

446

The Court said that the CSE had predetermined that student’s classroom placement at a 6:1:1 staffing ratio. It said that this was not a case where “the CSE did not adopt [the parent’s] opinion”.

The Court said that the issue here was “whether the CSE had an obligation to consider that [the student] needed a more [supportive environment]” (i.e., a 2:1 placement). The Court said that “[i]f the CSE refused to consider a more [supportive environment] than its public offerings were able to provide, that would amount to predetermination of [the student’s] educational program regardless of what [the student] needed or what his parents contributed to the process”.

The Court said that the decision regarding predetermination related “solely to the record” and “thus would ordinarily merit deference to the SRO’s findings”. The Court said, however, that the SRO “did not analyze the record to determine whether the CSE considered the parent’s point of view that [the student] needed a more [supportive environment] than 6:1:1”. What the SRO did, the Court said was to rely on evidence that the CSE analyzed the appropriateness of placements based on what types of classrooms the district had. These included a 12:1:4 classroom; a 12:1:1 classroom; an 8:1:1 classroom; and a 6:1:1 classroom. The Court wrote that this was not the correct standard, which was what level of support was “appropriate” for the student. And that “the statute does not require that a parent’s view need only be considered if it is consistent with available public offerings”. The CSE “was obligated [the Court said] to consider the [p]arent’s point of view that a 6:1:1 placement was not appropriate for [the student] and 2:1 was necessary, particularly in light of the fact that [the student] was then being educated in a 2:1 [supportive environment]”.

The Court said that “[i]n light of the fact that the SRO failed to analyze the record to answer the relevant question of whether the [p]arent was denied a meaningful opportunity to participate with respect to her concern that [the student] required a more [supportive environment] than a 6:1:1, the SRO’s finding is not supported by a preponderance of the relevant evidence”. The Court concluded here that “[t]he SRO’s reasoning supporting the conclusion is therefore neither persuasive nor consistent with the proper inquiry” and declined to defer to the SRO’s conclusion.

With respect to the IHO’s decision, that Court reviewed that and concluded that the IHO “performed the proper analysis, asking whether the CSE considered the parent’s concern regarding this issue, and if not, whether that failure in context of what the CSE did or did not consider amounted to a denial of the [p]arent’s opportunity to participate”. In particular, the Court found that the IHO considered the testimony of both the district (a 6:1:1 environment was appropriate) and the parent (that a 2:1 environment was appropriate); determined that the CSE did not consider the parent’s concerns regarding the [level of support] of the student’s recommended placement, and that such failure denied the parents’ opportunity to participate in the formation of their son’s education plan”. The Court pointed out that the IHO concluded that this violation “alone rose to the level of a FAPE violation”. The Court found this analysis to be “both persuasive and well- considered, and according defer[ed] to it”.

With respect to the Court’s independent review of the record, it said that it “also demonstrates that the [d]istrict did not enter the IEP with an open mind as to what was appropriate for [the 447

student], but was rather predetermined as bound by the few options cited in the IEP”.

“Accordingly and as reasoned above,” the Court said that “the [p]arent was denied an opportunity to meaningfully participate when the CSE failed to consider her point of view that [the student] required a more [supportive] setting than 6:1:1, in violation of the IDEA. With respect to whether the finding of predetermination was a denial of a FAPE, the Court pointed to caselaw for the proposition that a “procedural inadequacy that individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP constitute a denial of FAPE” See W.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 138 (S.D.N.Y. 2006). The Court concluded that the circumstances here met that standard.

Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) Dispute: Whether the inadequacy of goals and/or objectives is a procedural violation.

Conclusion: The SRO held that the IEP had no objectives for its related services goals and that since the student participated in “alternative assessment” this was a procedural violation of the IDEA. Basis of the SRO’s Decision: In this case, the student had a “diagnosis of autism and a severe intellectual disability”. Regarding this, student evaluations indicated that the student’s intellectual abilities were at the first percentile and that such might be an “overestimate”. The student’s score on the Vineland-3 comprehensive interview form given to the student’s parent to assess the student’s adaptive functioning also resulted in a score below the first percentile. The student exhibited significant sensory needs and presented with “significant language delays, pervasive difficulties with communication and comprehension”, and accompanying attention and sensory deficits.

With respect to the goals and objectives of the student’s IEP, the SRO pointed out that since the student participated in “alternative assessment” the district had an obligation to provide “[s]hort term instructional objectives or benchmarks” – “measurable intermediate steps between the student’s present levels of performance and the measurable annual goal”. Regarding this, the SRO pointed out that the IEP did not include short term objectives for any of the recommended related services. However, the SRO concluded that this “was a procedural error” and pointed out that “a procedural violation only results in a denial of FAPE if the procedural inadequacy (a) impeded the student’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (3) caused a deprivation of educational benefits”. The SRO indicated that this procedural violation would “be considered along with the substantive appropriateness of the December 2020 IEP recommendations”.

Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) Dispute: Whether the district’s recommended program was appropriate for the student.

448

Conclusion: The SRO determined that the recommended program was not appropriate for the student.

Basis of the SRO’s Decision: In this case, the student had a “diagnosis of autism and a severe intellectual disability”. Regarding this, student evaluations indicated that the student’s intellectual abilities were at the first percentile and that such might be an “overestimate”. The student’s score on the Vineland-3 comprehensive interview form given to the student’s parent to assess the student’s adaptive functioning also resulted in a score below the first percentile. The student exhibited significant sensory needs and presented with “significant language delays, pervasive difficulties with communication and comprehension”, and accompanying attention and sensory deficits.

Subsequent to preschool, the student was placed in a 6:1:3 special class in a New York State approved non-public school. There, she also received speech-language therapy, OT, PT, and ABA services. Beginning in July 2017, the student was enrolled by her parents at the Rebecca School.

During the 2019-20 school year at the Rebecca School, she was enrolled in an extended school year program in an 8:1+3 special class with OT, speech-language therapy, music therapy, PT and adapted physical education.

The district’s CSE met on December 8, 2020, regarding the student’s placement for the spring of the 2020-21 school year and the fall of the 2021-22 school year. During this meeting, “[t]he CSE determined that the student remained eligible for special education programs and services for a student with autism … “ It “recommended a 12-month extended school year program in an 8:1+1 special class in a district specialized school”. Among other things, it also recommended adaptive physical education, OT, PT and speech-language therapy.

At the December 2020, CSE meeting, the parents requested, among other things, that the student be recommended for an 8:1+3 special class with ABA instruction. Because of the CSE’s recommendation for an 8:1+1 program, the parents advised the district afterwards that they would continue to send the student to the Rebecca School and would seek reimbursement/direct funding for that school. Thereafter, the parents filed a due process complaint notice. The notice “alleged that the district failed to provide the student with a [FAPE] for the 2021-22 school year.

In a decision after an impartial hearting, the IHO concluded that the district offered the student a FAPE for the 2021-22 school year. Going beyond this, the IHO also found that the Rebecca School was an appropriate unilateral placement and that there were no equitable factors that would favor or disfavor either side.

The parent appealed the IHO’s decision that the recommended program provided the student with a FAPE to the Office of State Review. The district did not cross-appeal the IHO’s conclusion that the Rebecca School was an appropriate placement or that equitable factors did not disfavor either party. That being the case, the SRO found that the only issue in dispute was whether the district’s recommended program offered the student a FAPE. 449

Based on his review, the SRO concluded that the student had significant sensory needs and that “much of the dispute between the parties appears to relate to a differing view between the parents and the December 2020 CSE as to the level of support the student required” in order to meet his sensory needs and benefit from appropriate sensory programming.

With regard to defects in the IEP the SRO initially pointed to the fact that while the evaluative information before the CSE “identified that the student had significant impairments in expressive and receptive language, neither the December 2020 IEP nor the December CSE meeting notes reflect any discussion of the student’s strength or needs related to language development”.

Moving on to the IEP’s goals and objectives, the SRO pointed out that since the student participated in “alternative assessment” the district had an obligation to provide “[s]hort term instructional objectives or benchmarks” – “measurable intermediate steps between the student’s present levels of performance and the measurable annual goal”. Regarding this, the SRO pointed out that the IEP did not include short term objectives for any of the recommended related services. However, the SRO concluded that this “was a procedural error” and pointed out that “a procedural violation only results in a denial of FAPE if the procedural inadequacy (a) impeded the student’s right to a FAPE, (2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (3) caused a deprivation of educational benefits”. The SRO indicated that this procedural violation would “be considered along with the substantive appropriateness of the December 2020 IEP recommendations”.

The district’s special education teacher asserted, among other things, that an 8:1+1 special class was appropriately “restrictive” as a 12:1+1 class was not “restrictive” enough and that a 6:1+1 class was too “restrictive” and that therefore an 8:1+1 class was the student’s LRE. The SRO advised that he “would disregard[]” this testimony as providing support to the appropriateness of the district’s recommended program because LRE considerations relate to “a student’s access to nondisabled peers and not the “the level of additional support a student receives within a placement.

Regarding the student’s recommended program, the SRO said that the special education teacher’s “testimony [also] lacks a detailed explanation as to how the student’s significant needs could have been met with the supports offered in the December 2020 IEP …” Regarding the student’s sensory needs, the SRO assessed that the IEP “falls short in identifying specifically how the district program, … would address the student’s primary need for consistent sensory regulation throughout the school day. Regarding the student’s management needs, the SRO also concluded that while the IEP identified these needs “it did not reflect the level of adult support the student required” `to accommodate them. Further, and also regarding the student’s management needs, the SRO concluded that while the district presented testimony regarding the school’s ability to implement and address such needs, the SRO concluded that “the overall program recommendation does not appear to be to have been supportive enough to address the student’s needs” and the implementation procedures that the district unit coordinator testified 450

were not supported enough which did “not lend support to finding that the recommended program could have met the student’s needs.

With all of that in mind, the SRO concluded that “the recommended 8:1+1 special class was not sufficiently supportive to address the student’s needs and the hearing record supports finding that information available to the December 2020 CSE showed that the student required additional supplemental support personnel in the classroom to receive an educational benefit.”

The SRO awarded the parents reimbursement for the cost of tuition for the student’s attendance at the Rebecca School for the 2021- 22 school year.

Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the district show that its recommendation of a SETSS program for the student was appropriate.

Conclusion: The SRO concluded that the district did not show that its recommendation of a SETSS program for the student was appropriate.

Basis of the SRO’s Decision: The district’s IEP recommended four periods of Special Education Teacher Support Services (SETSS) for the student per week. The SRO pointed out that SETSS programing is not included in the continuum of special education services in State regulation and, depending on the circumstances of the case, is comprised of different elements. In this case, based on the description of this particular SETSS program at the hearing, the SRO advised that the SETSS services to be provided to the student were “very similar or identical to resource room services”. The SRO noted here that according to State regulation, resource room services, among other things, are limited to groups of five students, except that in New York City, a variance can be sought for a resource room to include up to eight students.

In this case, the SRO pointed out that the IEP did not include the number of students who would be a part of the student’s SETSS program and thus was “insufficiently described”. At the impartial hearing, district testimony was that the group size of the SETSS program would “not be more than eight”. However, as indicated above, this was not indicated in the IEP and therefore any testimony regarding this was impermissibly retrospective. Moreover, the SRO pointed out that with respect to the post-IEP explanation that the program would have no more than eight students, there was no evidence in the record to show that the required variance had been sought to allow a classroom size of greater than five.

The SRO concluded that “while it may have been theoretically possible that the recommendation for four periods of SETSS would have been an appropriate support …” for the student, other factors “cast too much doubt [to] make such a determination reliable”. In particular, as well as issues relating to the inadequate definition of the program in the IEP, the retrospective explanation of it, and that the program was apparently in excess of state mandated ratios, the SRO pointed out that there was no “data regarding the instruction the student was receiving prior 451

to referral or assessment of the student’s progress during instruction in the general education classroom” and that the degree of the student’s deficit in the areas of written expression “remained unexplored”.

The SRO concluded that based on the above and also because of identified deficiencies in the evaluative information before the CSE and the failure of the IEP to address the student’s social/emotional needs, “the district failed to meet its burden to demonstrate that the … IEP offered the student a FAPE”.

Rogich v Clark Co. Sch. Dist., No. 2:17- cv-01541-RFB-NJK. 2021 WL 4781515, at *2 -*8 (D. Nev. Oct. 12, 2021) Dispute: Did the IEP Team review existing evaluations including evaluations and information provided by the parents of the student and did the IEP Team consider the concerns of the parents for enhancing the education of their child? And relatedly, did the district provide the student with a FAPE? Conclusion: The Court concluded that neither did the IEP Team review existing information including evaluations and information provided by the parents of the student nor did it consider the concerns of the parents for enhancing the education of their child. And relatedly, the district did not provide the student with a FAPE. Basis of the Court’s Decision: The IHO determined that the district failed to comply with its procedural obligations under the IDEA. The SRO disagreed and found that the district complied with such obligations. With respect to this, the Court found, among other things, that the SRO erred by rejecting a number of the credibility determinations made by the IHO. These concerned, among other things, whether the IEP Teams reviewed evaluations provided by the parents; whether the IEPs at issue included the components of the Orton-Gillingham approach; whether “the evaluations plainly indicated that [the student’s] unique needs mandated the inclusion of a specific methodology”; and that because, “the IEPs only included multisensory instruction”, whether the IEP Teams could have meaningfully considered the evaluations or [the parents’] concern”. As a result of these errors the Court determined not to follow the SRO’s decision.

The Court saw “the primary dispute at the center of [the] action [was] whether the IEP [T]eam was required to include the Orton-Gillingham methodology or a similar program, in [the student’s] IEP. The Court concluded that “the [d]istrict ignored the central findings and recommendations of the professional evaluations of [the student]”. In particular, that these evaluations did not only call for multisensory instruction but “stressed the importance of the delivery mechanism by which [the student] would receive that instruction.” In particular, a 2009 evaluation expressed the opinion that “[m]ethodology will be a key factor in improving [the student’s] academic standing and that “[the student] will respond best to instructional programs that provide simultaneous, multisensory programs, and are also systematic and simultaneous cumulative”. The subsequent 2013 evaluation, which was prepared by the same evaluator, repeats the above and also stated “[u]nless the student has multimodality teaching, i.e., a 452

combination of visual, auditory, tactile, and kinesthetic, she will most likely have difficulty in academic settings, especially as the academic tasks become more abstract.” A 2015 evaluation states that “[the student] will continue to require intensive, multimodal, research-based learning programs for reading comprehension and math”. In testimony before the IHO this evaluator stressed “it matter[ed]” how the multisensory or multimodality approach is implemented and that it required “that it should be a program approach… there should be a methodology to it” and there “should be a philosophy to it and one that is applied with really rigorous consistency.”

In contrast to this, the Court pointed out that “the 2014 IEP included, [among other things], the instruction that a multisensory approach to teaching was to be used throughout the school day.” “[T]he 2016 IEP included, among other things, “multisensory instruction that will incorporate the simultaneous use of two or more sensory pathways during teacher presentations and student practice in Special Education classes”. The Court pointed out that neither the 2014 nor the 2006 IEPs “identified a specific methodology, or program, or structured curriculum format that teachers were obligated to utilize in meeting [the student’s] unique needs”.

The Court found that “the IHO properly concluded that the IEP [T]eams did not adequately review the evaluations provided by [the parents] nor meaningfully consider [the parents’] concerns for enhancing the education of their child”. With respect to the former, the Court concluded that this “[was] evident from the undisputed evaluations, which stress the importance of methodology and the use of the research-based learning programs”. The Court said that “the issue [was] not only the type of only instruction but the way in which it [was] delivered”. The Court admitted that “[the district was] not generally requited to include a methodology in the IEP, [but that] the District’s own Procedures Manuel makes plain that in rare circumstances a student’s individual needs may require a certain methodology if the IEP [T]eam determines that it would be necessary to receive a FAPE. The Court found that this was such a circumstance.

With respect to whether “the IEP [T]eams failed to consider [the parents’] concerns, the Court cited testimony to the effect that “the IEP [T]eams failed to respond to their inquiries about which programs, if not Oryon-Gillingham, the District was able to provide that would address [the student’s] unique needs”.

The Court also found that the district violated the substantive obligations of the IDEA. The Court said that taking into account the district’s procedural violations “and as the record and the evaluations make clear, [the student] required a specific methodology in order to receive a FAPE”. The Court went on to say that “this is not to say that [the student] necessarily required the Orton-Gillingham methodology but she did require an equivalent methodology that was research based, systemic, and rigorously implemented. The Court found that the district did not have any such program and that the district’s representation that its “multisensory program in the IEP was illusory as ”.

The Court concluded that the procedural and substantive violations deprived the student of a FAPE because they “seriously infringed the parents’ opportunity to participate in the IEP 453

formulation process” and “also resulted in the loss of educational opportunity for [the student]”.

The Court also concluded that “as made plain by the evaluations and their recommendations [the student] cannot learn without a consistent and structured approach to multisensory instruction throughout the school day.” Further, the Court went on to state that by [f]ailing to identify a methodology that would ensure that the same approach is consistently utilized throughout the school day by all of [the student’s] instructors necessarily means that [the student] will not have the opportunity to learn as she needs to”.

KB, on behalf of SB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 847 Fed. Appx. 38 (2d Cir. Feb. 26, 2021) 2015-16 School Year Dispute: Did the district’s recommendation that the student attend a specified therapeutic day program provide the student with a FAPE? Conclusion: The Appeals Court agreed with the SRO’s and the District Court’s conclusions that the district’s recommended program provided the student with a FAPE. Basis of the Appeals Court’s Decision: The district recommended that the student attend a specific therapeutic day program for the 2015-16 school year, which the court indicated provided “small classes” and accommodated the student’s other educational needs. The parent rejected the district’s placement largely on the basis that school personnel were not trained in a particular methodology (dialectical behavior therapy or “DBT”). The Court set forth that the IEP did not call for the use of the parent’s desired methodology other than that the recommended placement be supportive of the use of that methodology by the student’s psychologist. Regarding this, the Court reviewed the record and concluded that the recommended day treatment program would be supportive of the student’s progress in her treatment by her psychologist. The parent also asserted that the student was not appropriately grouped with other students in the recommended program but the Court found that the evidence did not support this claim.

2016-17 school year Dispute: Did the district’s recommendation that it place the student in a “new DBT-based program” provide the student with a FAPE? Conclusion: The Appeals Court agreed with the SRO’s and District Court’s conclusions that the district’s recommended program provided the student with a FAPE. Basis of the Appeals Court’s Decision: The district recommended that the student be placed in a “new-DBT-based program” at the high school that the student attended in 2015. The student’s psychologist recommended that the student remain at her present school “where she had succeeded academically and emotionally”. Citing to Endrew F., the Court agreed with the SRO that the psychologist’s opinion that the student’s current school would be “better” for the 454

student could be “discounted” as “the focus of the inquiry is on the appropriateness of the offered placement, not whether an alternative placement would have been preferable”.

Regarding this, the Appeals Court reviewed the record and agreed with the SRO that the student was likely to make “meaningful progress” and be “well supported” because of the DBT-based program at the recommended school.

KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) Dispute: The parent asserts that the district’s recommended educational placements denied the student a FAPE. The district disagrees and sets forth that its placements provided the student with a FAPE. Conclusion: The Second Circuit agreed with the SRO and the District Court that the district’s recommended placements for the 2015-16 and 2016-17 school years provided the student with a FAPE. Basis of the SRO’s Decision: With respect to the 2015-16 school year, the student’s IEP recommended that the student attend a private therapeutic day program. The Appeals Court indicated that this program “was capable” of providing the student with small classes and “accommodating” the student’s other educational needs. In response to the parent’s argument that the recommended placement was inappropriate because its staff was not trained in a particular methodology -- (here, dialectical behavior therapy [DBT]), the Appeals Court pointed out that the IEP did not require that the student be provided with this methodology but only that the recommended program be supportive of the DBT treatment that the student received from her private psychologist. With respect to this, the Appeals Court found that the record supported the conclusion that the staff of the recommended private school was in fact “capable of supporting” the student’s progress in her DBT treatment by the student’s psychologist. The Appeals Court also found that the record supported the District Court’s conclusion that the student would not have been “mismatched” with her classmates at the recommended private school.

With respect to the 2016-17 school year, the Appeals Court held that the District Court appropriately found that the SRO had properly concluded that the recommended placement offered the student a FAPE. More specifically, the school district offered to place the student in a new DBT-based program at a public high school. The Appeals Court also held that the SRO “did not err” by discounting the recommendation of the student’s private psychologist that an alternative placement would have been “better” for the student. The Appeals Court indicated that what was important is not whether an alternative placement was “better” or “preferable” but whether the student “was likely to make meaningful progress” in the recommended placement. In this case, the Appeals Court held that the student would be “well supported” by the recommended school’s new DBT program.

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C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The district asserts that the appropriate placement for the student was a therapeutic day program. The parents assert that a residential placement was appropriate.

Conclusion: The Court agreed with the SRO that the district’s placement was appropriate.

Basis of the Court’s Decision: The student was classified as a student with an emotional disturbance. For the 2014-15 and 2015-16 school years, the district’s CSE recommended, among other things, a placement consisting of an 8:1+1 special class with the additional benefit of a therapeutic support program (TSP) operated by the regional BOCES and participation in a before and after school intervention services (BASIS) program. The BOCES TSP program included weekly individual and group counseling and its teachers and clinicians had experience in addressing the needs of students with psychiatric disorders. The BASIS program provided “daily family support and strategies at home before and after school and the development of a functional behavioral assessment and a behavior intervention plan.” It was supervised by a school psychologist, was staffed by certified teachers or teaching assistants; with all staff trained in therapeutic intervention. Upon review, the SRO concluded that the student’s IEP for both school years was appropriate, thereby providing the student with a FAPE. The District Court found that the SRO’s decision “reasonably concluded that the CSE’s recommended placement in the BOCES/BASIC program was appropriate for [the student] during the 2014-15 and 2015-16 school years” and therefore provided a FAPE. The Court reviewed the student’s IEPs and concluded that the TSP and BOCES/ BASIS program addressed the student’s emotional needs. The parents argued that the student’s recommended program was not appropriate because it did not include 24/7 coverage within a residential placement, which was recommended by the parents’ experts. The Court concluded that while these persons felt that the student required a residential program, the SRO’s conclusion that a therapeutic day program with before and after school supports provided the student with a FAPE was the type of issue upon which “deference” was owed to “administrative officers”. The Court described the SRO’s “twenty-three single spaced pages” as “well-reasoned,” “quite thorough,” and “careful” and found that the SRO had conducted a “detailed review” of the 2015-16 school year. The Court also pointed out that the recommended program was consistent with the requirement that students be educated in the LRE as it provided the student with extracurricular and particular mainstreaming opportunities. The Court further pointed out that the district court had previously reviewed the student’s program for the 2012-13 school year and further that the parents had not appealed from an IHO decision finding that the recommended program for the 2013-14 school year was appropriate -- and that the only difference between those school years and the years under review in this case was that the student had made “documented improvements”. With respect to that, the Court concluded that because the student had made “significant progress” in her residential program, at this time such a program was less appropriate for the student.

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Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that its IEP provided the student with a FAPE. The parents disagree.

Conclusion: The Second Circuit upheld the determinations of the IHO, SRO and the District Court that the district’s IEP did not provide the student with a FAPE. Basis of the Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It agreed with the IHO and the SRO that the district’s IEP did not provide the student with a FAPE in that the IEP “failed to address how a specialized classroom of 15 students to one teacher would address [the student’s] frequent need for one-on-one attention, even if all students shared a similar level of cognitive ability”. The Court found that the agency’s “factual findings…were reasoned and supported by the record, “that its review was “thorough and careful” and that the determination “falls squarely within the agency’s expertise on educational policy and warrants deference from the judiciary”. Moreover, the Court pointed out that deference is “particularly warranted” where, like here, no additional evidence is presented beyond the administrative record.

Application of a Student with a Disability, Appeal No. 20-101, (8/3/2020) Dispute: Parents claim that the IEP does not provide appropriate supports for student’s attention, executive functioning and social/emotional needs. District supported the IHO’s conclusion that the district prepared an adequate IEP. Conclusion: The SRO determined that the IEP included supports that were designed to address the student’s attention and executive needs to the extent that those needs were described in the hearing record and that the student did not exhibit anxiety in the classroom Basis for SRO’s decision: The SRO concluded that the student’s IEP included appropriate speechlanguage therapy, testing accommodations, annual goals, and specified strategies to appropriately address the student’s management needs.

Application of a Student with a Disability, Appeal No. 20-101 (8/3/2020) Dispute: Parent asserts that Integrated Co-Teaching services for ELA, mathematics, and social studies was an inappropriate placement. District asserts that this placement was appropriate for the student.

Conclusion: The SRO concluded that the record did not show that the district’s placement was appropriate.

Basis of SRO’s Decision: The district failed to meet its burden to show that the recommendation for ICT services offered the student a FAPE given the district’s failure to provide objective evidence of the student’s progress in a similar program in previous years.

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Application of a Student with a Disability, Appeal No. 20-122 (September 17, 2020) Dispute: The parent asserts that the student, who was dually enrolled, required 12 hours a week of special education teacher support services (SETSS) at home for the 2018-19 and 2019-20 school years. The district contends that the receipt of six hours per week of SETSS was an appropriate level of service given its recommended provision in school and in a group setting.

Conclusion: The SRO concluded that 6 hours of SSETSS was sufficient to provide the student with FAPE for both school years.

Basis of the SRO’s Decision: The SRO reviewed the documentation in the record including a June 2018 psycho-educational evaluation, the summary of the student’s academic performance set out in the student’s August 2018 individualized education services program (IESP), the results of a speech-language assessment summarized in the student’s August 2018 IESP, information from a SETSS provider report summarized in the January 2019 IEP, academic and other information relating to the student’s needs set forth in the student’s December 2019 IESP, the testimony of the student’s SETSS provider, and the testimony of the teacher assigned to the CSE. Based on this information, and “with particular attention to the student’s needs identified in the IESPs” the SRO concluded that the evidence in the record supported “the IHO’s finding that the recommendation for six periods per week periods of SETSS were appropriate to meet the student’s academic needs”. The SRO took into account the availability of SETSS providers at the student’s private school and the offered group level of services.

PREDETERMINATION J.D. and L.D. v. Rye Neck Union Free Sch. Dist., 22 CV 3039 (VB), 2023 WL 1797170 (S.D.N.Y. Feb. 7, 2023) Dispute: Whether the CSE predetermined the student’s recommended placement.

Conclusion: The Court agreed with the IHO and the SRO that during the relevant period the CSE did not predetermine the student’s placement.

Basis of the Court’s Decision: In this case, the parents assert that the CSE predetermined the student’s placement. The Court first pointed out that “a lesser degree of deference is owed to the SRO on the issue of predetermination because one need not have a background in education or educationally policy to consider and determine whether the CSE had an open mind going into the meetings”. G.S. v.

Pleasantville Union Free Sch. Dist., 19-CV-6508 (CS), 2020 WL 4586895, at *11 (S.D.N.Y. Aug. 10, 2020). The Court also said that “deference is particularly appropriate when the state officer’s review has been thorough and careful as it was here". Further, the Court said that “deference is especially appropriate when the SRO agreed with the IHO’s ruling”. B.K. v. N.Y.C. Dep’t of Educ., 12 F. Supp. 3d 343, 360 (E.D.N.Y. 2014). In this case, the Court noted that both the IHO and the 458

SRO determined that the CSE did not predetermine the student’s placement determination.

Accordingly, the Court determined that” the SRO’s determination [was] entitled to deference”.

The Court decided further, that upon review, the question of predetermination was “supported by a preponderance of evidence in the record”. The Court concluded that the evidence showed that the CSEs during the relevant two-year period had “the requisite open mind and allowed the parents to participate meaningfully in the developments of the IEP”. This, though “the district staff ultimately disagreed with the opinions of the parents and their outside professionals”. The Court pointed out that “[t]he parents attended all CSE meetings, voiced their concerns about the CSE’s recommendations, and provided information that the CSE considered in developing the IEPs”. Further, the parents brought their expert to the September 2019 CSE meeting and that person “presented her findings and recommendations to the CSE” and as a result, the CSE revised the IEP. “And in 2020, after hearing from the parents and a representative from [the private school that the student was attending], reviewing progress reports and testing data from [the student’s private school], and conducting additional evaluations, the CSE further revised its recommendations…”. See J.P. v. City of N.Y. Dep’t of Educ., 717 F. App’x 30, 32 (2d Cir. 2017) (summary order).

With the above in mind, the CSE concluded that “the SRO properly found the CSE did not predetermine [the student’s] placement and allowed the parents to meaningfully participate in the development of the IEPs”.

The Court reviewed the parents’ arguments and rejected them both. The parents argued first, that the district should not have continued with the recommendation that the student be placed in a general education class for science and social studies “after the parents expressed concerns.”

The Court said that such a determination did “not mean that the district had an unofficial policy of refusing to provide special education or co-teach classes for those areas”. Regarding this, the Court said that the evidence showed that the CSE “considered the parents’ concerns but continued to believe the district’s recommended program was appropriate, particularly in light of the strong preference for educating children in the least restrictive environment and [the student’s] grade level performance in science and social studies”. “Based on this factual record” the Court said that it “cannot simply assume that the district’s decision to rely heavily on general education classes with various supports is necessarily inappropriate, especially given the district’s broad discretion to adopt programs it finds effective”.

The parents also argued that testimony that “during [the student’s] time in the district, third grade students have not needed an ICT class for science and social studies support the existence of an unofficial district policy of refusing to provide such a program”. With respect to this, the Court pointed to the IHO’s conclusion that district staff “credibly testified the district would have provided an ICT or special class for [the subjects in question] if a student needed one” and that “[t]he parents offer no evidence to the contrary, only their opinion, based on common sense, that such staff testimony was not credible”. Given these differing positions, the Court 459

determined to defer to the IHO’s conclusions regarding credibility as the IHO “conducted the hearing” and relied “on her educational expertise” “Accordingly,”, the Court concluded that “giving due weight to the SRO decision and the IHO’s credibility assessment, and based on the Court’s independent examination of the record” the IEPs for the two years in question were “procedurally adequate” as they related to the issue of predetermination.

Carrillo v. New York City Dep’t of Educ., No. 21-2639, 2023 WL 3162127 (2d. Cir. May 1, 2023) Dispute: Whether the District predetermined the recommended placement for the student.

Conclusion: The Court of Appeals upheld the District Court that the student’s placement was not predetermined.

Basis of the Second Circuit’s Decision: The student “is a nonverbal and non-ambulatory student with significant disabilities”. As part of the development of the student’s IEP, the CSE “classified the student’s disability as multiple disabilities, assigned special education programs and services, and recommended that [the student] be placed in a 12:1:4 classroom 94”. Such a classroom structure “is the most supportive classroom environment contemplated by the applicable New York regulations”.

The parents asserted that the placement violated the student’s right to a FAPE, “provided notice of their intent to unilaterally place [the student] in a private [school … ] and filed a due process complaint [notice] seeking reimbursement of tuition and other costs related to the student’s attendance at the private [school]”. The parents preferred a 6:1+1 placement 95.

After a hearing, the IHO issued a “thorough” decision finding that the CSE’s proposal provided the student with a FAPE. The parents appealed that decision to the State Review Officer (SRO), who “issued a detailed thirty-four-page decision finding that the IHO had correctly determined that the student was offered a FAPE”. The parents filed an action in District Court challenging the SRO’S decision. The District Court affirmed that the 12:1+4 placement provided the student with a FAPE. On appeal to the Second Circuit, that Court said that “[t]o the extent [the parents] contend that [the student’s] IEP was procedurally inadequate because the CSE improperly predetermined the outcome, the record does not support such a contention”. The Second Circuit explained that “[p]redetermination is inconsistent with the goals of the IDEA, which envision a collaborative

94

That is, a classroom placement of 12 students, I licensed special education teacher, and three paraprofessionals.

95

That is a classroom placement of six students, one licensed special education teacher and one paraprofessional.

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process in developing a uniquely suitable educational placement for each child 96”. However, the Court went on to say that “where a [p]arent has actively and meaningfully participated in the development of an IEP, courts have rejected predetermination claims”. Here, the Second Circuit pointed out that the CSE meeting, “in which [the parents] participated, lasted nearly three hours and the IEP expressly noted [the parents’] concerns regarding the class placement”. The Court of Appeals agreed with the District Court that “the record actually suggests that it was the parents, not the district, who lacked an open mind about the process”.

Application of the Bd. Of Educ., Appeal No. 22-037 (June 9. 2022) Dispute: Whether the student’s placement was predetermined.

Conclusion: The SRO reversed the IHO’s decision that the district predetermined the student’s placement.

Basis of the SRO’s Decision: “As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting.” “The key factor with regard to predetermination is whether the district has an open mind as to the content of the student’s IEP.” “Districts may prepare reports and come with preformed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.”

Further, “[t]he IDEA sets forth procedural safeguards that include providing parents an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child” “Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child’s IEP meetings or are afforded the opportunity to participate”. “Although school districts must provide an opportunity for parents to participate in the development of their child’s IEP, mere parental disagreement with a school district’s proposed IEP and placement recommendation does not amount to a denial of meaningful participation”. “When determining whether a district complied with the IDEA’s procedural requirements, the inquiry focuses on whether the parents had an adequate opportunity to participate in the development of their child’s IEP.” “Moreover, the IDEA only requires that the parents have an opportunity participate in the drafting process” In reviewing the evidence, the SRO found “that the CSE meeting notes indicated that the CSE was open” to the parent’s desired placement. Further, the CSE notes “all indicated that the CSE listened to information presented by [staff at the student’s preferred placement], reviewed aspects of the student’s program at [the parents’ preferred placement] and listened to the concerns of the parents, the student’s family care provider, and the parents’ advocate”.

See E.H. v. New York City Dep’t of Educ., 164 F. Supp. 3d 539, 551 (S.D.N.Y. 2016) for a case which found a placement was predetermined and concluded that this procedural error was a violation of a FAPE. 96

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Additionally, “the district sent the parents a prior written notice…indicating that the parent, the family care provider, and the parents’ advocate had the opportunity to participate, express concerns, and ask questions during the CSE meeting”. Further, the SRO cited to the record that showed that a CSE member from the parents’ preferred placement testified “that the parent had the opportunity to ask questions”. Additionally, “district witnesses [also] testified that [CSE members from the parents’ preferred placement] were present at the … CSE meeting, participated, and spoke about the [parents’ preferred placement] and the progress the student made there”. Finally, the hearing record showed that a CSE member “testified that representatives from [the parents’ preferred placement] were very helpful and fully engaged”.

With the above in mind, the SRO found “that the parents, the student’s family care provider, and advocate all participated in the …CSE meeting and were provided with the opportunities to ask questions during [that] CSE meeting”. The SRO also found that the fact that the CSE did not recommend the parents’ preferred placement and program was “not tantamount to a denial of meaningful participation”. Based on the above, the SRO also found that the district presented “sufficient evidence” to show that it had an “open mind in conducting the … CSE meeting”. The SRO reversed the IHO’s decision with respect to predetermination “must be overturned”.

Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) Dispute: Whether the district predetermined the student’s recommended program.

Conclusion: The district did not predetermine the student’s program.

Basis of the Court’s Decision: The parents asserted that the March 19, 2018 CSE meeting was predetermined. According to the Court, “[t]he SRO concluded that the record failed to show that the CSE lacked an open mind with respect to the details of the student’s program”. The Court pointed out that “[t]he meeting lasted between 2.5 to 3 hours” and that the student’s father testified that he had “both attended the meeting and interacted with the CSE during the meeting.” Further, while “the parents disagreed with the results” that did “not mean they were not given the opportunity to participate and raise objections” and nor did “it mean that CSE representatives did not listen to the parents or take their point of view into account”.

Additionally, according to the Court “the parents had an advocate at the meeting” and the student’s private school teacher and other providers were present at the meeting by telephone” and which “gave them an opportunity to advocate for their preferred placement”. Reviewing the record, the Court found that to the contrary, it was the parents who lacked an open mind about the process. Regarding this, the Court found that the “totality of the evidence:” showed that “the parents intended to keep [the student] in private school,” and move the student to a new private school no matter “what the CSE finally did”.

Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) Dispute: Whether the district’s 12:1+4 special class placement was appropriate.

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Conclusion: The Court upheld the SRO’s recommendation that the district’s recommended placement was appropriate.

Basis of the Court’s Decision: As the CSE classified the student as having “severe multiple disabilities and needing an educational program consisting primarily of habilitation and treatment”, consistent with regulation (see 8 NYCRR 200.6[h][4][iii]), the IEP recommended that the student be placed in a class capped at 12 students, one teacher and one staff person for every three students or a 12:1+4 classroom. At the same time, the student had “highly intensive management needs that required a high degree of individual attention and intervention”.

According to regulation (see 8 NYCRR 200.6[h][4][ii][a]) such a student required a class “capped at 6 students, one teacher, and one staff person or a 6:1+1 classroom. Note also that the CSE recommended that the student be provided with a 1:1 aide.

What to do about these competing regulations? The Court pointed to the fact that State and federal regulations “require a CSE’s evaluation of a student to be sufficiently comprehensive to identify all of the student’s special education and related service’s needs, whether or not commonly linked to the disability category in which the student has been classified”. Therefore, the SRO resolved the question of which of the two regulations should apply to the student by evaluating the student’s needs, and doing so in an “extensive” and “detailed” fashion. Upon evaluation, the SRO concluded that the student’s “highly intensive management needs arose because of [the students] severe multiple disabilities”. The SRO held that the CSE had correctly placed the student in a 12:1+4 placement. The Court noted that the SRO found that the student’s “needs would be better addressed in a classroom having a larger number of school staff members who were trained to work collaboratively with the teacher – a 12:1+4 classroom – rather than in a classroom with fewer students but also fewer staff”. He pointed to the SRO’s conclusion that the adult to student ratios were the same in both classrooms but that “the greater variety in the type of school personnel typically found working with a student in a 12:1+4 special class setting would be of benefit to the child, and were not found in the definition of a 6:1+1 special class”.

The Court found that the SRO “supported his decision with extensive references to the record”, and that there was “certainly record evidence that supports the SRO’s finding that the CSE placement would have provided [the student] with a FAPE”. The Court further found that this was “precisely the sort of decision that a person like the SRO, who has extensive experience in the education of profoundly disabled children, is equipped to make – and that [the] Court is illequipped to second guess.” The Court also pointed out that the question addressed did not deal with a question of law -- where no deference to an SRO’s opinion is due -- but of an educational issue; where deference to the SRO is to be given.

Mr. and Mrs. O v Glastonbury Bd, of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691, at *5, *8-*12 (D. Conn. Dec. 29, 2021) Dispute: Whether the district violated the parents’ right to meaningful parent participation and predetermined the student’s educational placement.

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Conclusion: The Court determined that the record supported neither the district nor the parents and remanded the matter to the hearing officer for additional findings.

Basis of the Court’s Decision: Among other things, the parents asserted that the district denied them meaningful participation at the January 30, 2019 IEP Team meeting and that at that IEP Team meeting predetermined the student’s recommended placement. The hearing officer found that the parents “participated in the process and their views were taken into account, as the evidence demonstrated that the student’s parents attended the [IEP team] meetings involved in developing the 2019 IEP and were represented by counsel”. And further, that in the absence of consensus at an IEP meeting, as was here, the district “was responsible for the choice of a special education placement”. Regarding predetermination, the hearing officer concluded that the district arrived at its recommended program after considering a “multidisciplinary evaluation” and retaining the services of a feeding consultant as “a component of the [district’s] planning to meet the student’s needs”.

The Court cited to case law that parental participation “involves more than mere presence” at an IEP Team meeting but requires that the parent be given “the opportunity to be an equal collaborator” in the IEP Team process. With respect to the predetermination of a student’s placement or program, the Court said that such was “inconsistent with the goals of the IDEA” which, as indicated above, requires that the parent and the district be collaborators in the IEP process. Regarding predetermination, the Court set out that the district “cannot predetermine the contents of an IEP in advance of a [IEP Team] meeting”. And further, that “[p]redetermination is a procedural violation of [the IDEA] and may rise to the level of a substantive harm and therefore deprive the [student] of a FAPE where the child’s parents are effectively deprived of meaningful participation in the IEP process”. However, the Court pointed to case law and regulation that allows the district to engage in “preparatory activities that fall short of a pre-meeting agreement” as to what the IEP must contain.

The Court said that “ordinarily” it would defer to the hearing officer’s findings related to predetermination and parental participation. However, the Court found that the hearing officer “did not analyze the record to determine whether the [p]arents had an opportunity for meaningful participation” in the IEP Team meeting or “whether the [district] predetermined the Reviewing hearing officer findings ostensibly relating to [s]tudent’s placement”.97 predetermination and parent participation, the Court concluded that while such might have been “potentially relevant” to whether the proposed program was substantively appropriate, they were “inapposite to the procedural inquiry of whether there was a pre-meeting agreement as to As indicated herein, the Court looked beyond the district’s contentions that it provided “copies of the completed evaluations” to the parents, “provided adequate notice of the [January 2019 IEP Team] meeting”, “provided draft goals and objectives for [the parents] to review” before the January 2019 IEP Team meeting, “attended the [January 2019 IEP Team] meeting with an attorney”, “were offered the opportunity to ask questions about the evaluations and proposed goals and objectives”, “asked questions”, “offered three physician letters”, and “expressed their clear and immediate disagreement with the proposed placement”.

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the [s]tudent’s placement or whether the [p]arents’ views were appropriately considered in the [IEP] Team meeting process”. The Court also pointed to the fact that the “record revealed” that two of three letters from the student’s physicians regarding the student’s placement “were not read, much less considered or discussed” at the IEP Team meeting. As a result, the Court found that the hearing officer’s decision was “not supported by a preponderance of the relevant evidence” and that deference should not be given to it. The Court further found that its “independent review” of the hearing record “[did] not reveal that the [district] engaged in mere preparatory activities” but that there was “substantial evidence in the record to suggest that district staff agreed to alter the [s]tudent’s placement before the multidisciplinary evaluation and [IEP Team] meeting, thereby impeding parental participation”. The Court held that the “facts in the administrative record, which are not addressed by the [h]earing [o]fficer’s decision, preclude judgment as a matter of law to the [district] as to procedural compliance with the IDEA, at least as to the alleged predetermination of placement and denial of meaningful parental participation”. At the same time, the Court also held that it “lack[ed] a basis on which to grant judgment as a matter of law to the [parents]” because “the cases where procedural violations have been so egregious so as to entitle parents to relief exceed the facts alleged here”. Regarding this, the Court concluded that it “therefore cannot determine on the record before it, that the alleged predetermination and denial of parental participation – or indeed any other procedural violations 98 that may have occurred, in isolation or in aggregate -- were so egregious as to entitle the [p]arents to relief as a matter of law”.

The Court denied the parties’ cross-motions for summary judgment and remanded the matter to the hearing officer “for additional findings”.

B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) Dispute: Whether the district significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child during the 2013-14 and 2014-15 school years and whether it predetermined the student’s placement at its October 1, 2013 meeting.

Conclusion: The Court concluded that the district significantly impeded the parents’ opportunity to participate in their son’s educational planning during the 2013-14 school year (July 16, 2013 to July 29, 2014) which denied the student a FAPE during this period of time. As a consequence, the Court remanded the matter to the hearing officer for a determination of the appropriate amount of compensatory education due. The Court also found that the district did not predetermine the student’s placement at its October 1, 2013 meeting.

Basis of the Court’s Decision: As an initial matter, the Court averred that “as the Supreme Court has repeatedly emphasized, the central importance of parental participation in the creation of The parents also alleged a number of other violations, styled as procedural, including “removal of programming” in areas of specified need, “failure to develop measurable IEP goals”, and “inaccurate designation of service hours”.

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educational programs under the IDEA cannot be gainsaid”. 99 The Court went on to say that “not every minor procedural error on behalf of a school board results in the denial of a FAPE”. And further, where the issue is one of the “deprivation of the parental right to participate, [parents] must show that the procedural violation significantly impeded that right in order to show a FAPE denial”.

The IEP [T]eam scheduled a meeting for June 21, 2013. Because of a conflict on the part of the district, the meeting was rescheduled for July 16, 2013. Prior to the meeting the parents advised the district that the student been accepted at a private residential school and that “they intended to enter [the student] in that program as soon as space became available” 100 In response to that, the district wrote to the parents and advised them that the district was “not required to, nor will it propose a revised IEP while the student is unilaterally placed” by the parent at the private school. On July 15, assuming that the district would be proceeding with the July 16, 2013 IEP Team meeting, the district “circulated a dial-in number and location for the meeting.” After receipt of the letter, the parents advised the district that they would “very much like to attend the IEP [Team] meeting”, but that they had believed from the district’s earlier letter and the district’s failure “to provide an agenda, a list of participants, and other information” that the meeting “had been cancelled". The parents also advised the district that because they had believed that the meeting “had been cancelled they had not made the necessary childcare arrangements, preventing them from attending on short notice”. This was followed up the next day by an email from the parents’ attorney “reiterating [the parents’] inability to attend and again requesting [the district] to reschedule the meeting”.

The district determined to proceed with the July 16, IEP Team meeting notwithstanding that the parents were not able to attend. “The meeting minutes state that the need to remain in compliance with the requirement that IEPs be updated at least annually was the reason for moving forward in the [parents] absence.” The notes of this annual review meeting make clear that, among other things, “updates to the student’s goals were impossible to make because the IEP [T]eam lacked current information regarding [the student’s] behaviors and progress”. On or about July 19, 2013, the district issued a placement notice placing the student in a private therapeutic residential school and which the district had previously identified for the student on or about October 2012.

Upon agreement as to time and place, the IEP team reconvened on October 1, 2013. “The agenda for the meeting included review of new data and recommends (sic) for updated social emotional goals, review of recommended placement, and opportunity to discuss additional concerns or questions”. The agenda “did not include a plan to review goals outside of the social The Court cites to Honig v. Doe, 484 U.S. 305, 311 (1988) and Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist v. Rowley, 458 U.S. 176, 205-06 (1982).

99

The student is classified as a student with multiple disabilities. His conditions include an extreme form of attention deficit hyperactivity disorder, developmental coordination disorder, anxiety disorder with obsessive compulsive features, and a variety of other learning disorders.

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emotional category. During the meeting, the IEP Team “discussed [the student’s] recent hospitalizations and a recent behavioral incident report” The IEP Team “reviewed [the student’s] psychiatric health and social-emotional goals as well as his proposed placement at [the districtidentified private therapeutic residential school]” “At the end of the meeting, [the district] reiterated its recommendation that the student be placed” at that private school and “set a proposed date for his placement” there. The parents and their attorney reiterated their own objections “and rejected the proposal”. “[A]n amended IEP dated October 4, 2013, “stated that [the district] amended [the student’s] present performance levels and annual goals in a single area of concern – the social— emotional—behavioral area.” “A few days later [the district] sent [the student’s] parents a Prior Written Notice identifying [the student’s] placement as [the district-identified private school] and noting that the [student’s parents] had rejected that placement.”

The IEP Team met again on July 29, 2014 for an annual review. The district prepared a draft IEP which it circulated prior to the meeting to some members of the IEP Team but not to the parents.

“During the meeting, the draft IEP was projected on a screen visible to all [IEP] [T]eam members”.

The parents received a copy of the draft IEP at the time of the meeting.

With respect to the July 16, 2013 IEP Team meeting, the Court concluded upon review that the district “failed to comply” with relevant federal regulations at 34 CFR 300.322(a), (a)(2) and (d) and 300.328. Section 300.322(a) provides that the district “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting”. Section 300.322(a)(2) provides that IEP Team Meetings must be scheduled “at a mutually agreed on time and place”. The regulations at Section 300.322(d) provide that a district may only hold a meeting without a parent if the public is “unable to convince the parents that they should attend”. Section 300.328 provides that “the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation such as video conferences and conference calls” 101 The Court concluded that while the parents’ communicated intent to enroll the student in a private school “undoubtedly created confusion regarding whether the July 16 meeting was moving forward” as soon as the parents learned that the district and they were “not on the same page” the mother “immediately” “reached out” and advised that “she would very much like to attend and attempted to reschedule the meeting at a mutually convenient time”. This being the case, the Court concluded that at that time, “nothing more was required because, at that point, it was clear that the meeting was no longer at a mutually agreed on time and place” and that the district had not been “unable to convince the parents that they should attend”.

Section 300.322(c) provides that “[i]f neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls” (emphasis supplied).

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The Court dismissed the hearing officer’s conclusion that the district had done no wrong for two reasons. First, the Court wrote that “[w]here, as here, a conflict arises prior to the meeting, it is timely communicated to the other side, and an offer is made to reschedule, the previously scheduled meeting is no longer in conformity with the regulation [at Section 322(a)(2)] because it is no longer at a mutually agreed on time and place”. Second, the Court found that the hearing officer’s conclusion that the district had a right to go forward with the July 16, 2013, meeting “ignores the regulatory prohibition on holding a hearing unless [the district] is unable to convince parents that they should attend”. The Court said that “when [the parent] reached out on the day before the meeting saying she would very much like to attend, she had plainly communicated to [the district] that she believed that she should attend the meeting”. The Court said that the hearing officer “ignor[ed] the plain meaning of the regulatory language” when it analyzed “whether [the parents’] confusion regarding the meeting was reasonable”. Contrary to the position of the hearing officer, the Court said that “the regulatory scheme puts a clear thumb on the scales – parental participation is required up until the point the [district] can no longer convince the parents they should attend an IEP [Team] meeting”. According to the Court, “the [d]istrict may be required to accommodate parents even when they are difficult, contentious, or comparatively more at fault in a scheduling mix-up”. The Court concluded that the parent “plainly came within the reach of Section 300.322(d)” and “the hearing officer erred in finding that no violation occurred by holding the July 13 [sic] meeting in her absence”.

The Court held that “[d]ue to the primary importance of parental participation, the complete exclusion of the [parents] from the [July 16, 2013] IEP [Team] meeting [rose] to the level of a substantive FAPE denial because it significantly impeded their ability to participate in [the student’s] educational planning”.

Regarding the October 1, 2013, IEP Team meeting, the parents argue that this meeting “failed to cure the FAPE denial [resulting from the July 1, 2013 meeting] because [the October 1, 2013 meeting] was insufficient in scope to replace the July 13 (sic) annual review and because [the district] predetermined [the district-identified private school] as the appropriate placement for the student prior to the meeting”.

The Court stated that “where a [district] has caused a FAPE denial due to improperly excluding parents, it bears a heavy burden in remediating this procedural violation”. The hearing officer concluded that “because [the parents] were able to participate and because the relevant portions of the IEP were reviewed during the October 1 meeting, there had been no denial of a FAPE as a result of this meeting”. The Court rejected this reasoning and pointed out that the hearing officer’s conclusion was “premised on the …prior erroneous conclusion that no violation occurred with respect to the July 16 meeting”. The Court said that the hearing officer “fail[ed] to incorporate … that the [parents] were entitled to participate in the full creation of [the student’s] IEP for the 2013-14 school year” and that “this requires more than some after-the-fact participation, which is all [the district] offered here through the October 1, 2013 meeting”.

Reviewing the record, the Court pointed out that “critical components of an IEP [T]eam’s annual 468

review were omitted or overlooked during the October 1, meeting”. The Court cited to the IDEA that “IEP [T]eams are required to, among other things, assess the student’s progress toward his annual goals, review the child’s anticipated needs, and receive information from the student’s parents”. Here, the Court found that “[t]he limited focus of the October 1 meeting failed to do so”. In particular, notwithstanding that the July 16 IEP Team was unable to update the student’s goals in numerous categories due “to lack of relevant data,” “the October 1 meeting did not review or update [the student’s] IEP in many of these areas”. “Nor did it seek information from the [parents’] on [the student’s] progress in these areas.” The Court said that “[i]nstead, the October meeting “focused almost exclusively” on the district’s preferred placement, “a recent incident that had occurred with a home instructor, and updating [the student’s] goals in the social-emotional category”. The Court concluded that “[t]his limited review was insufficient to cure the prior deficiencies [of the July 16, 2013 IEP Team meeting] resulting in a continued FAPE denial through the next time the IEP [T]eam convened on July 29, 2014” for its annual review for the 2014-15 school year.

Regarding the parents’ claim that the district predetermined the recommended private school at its October 1, 2013 meeting, the Court concluded that this was not the case. The Court said that “[w]hile parents’ participation is crucial to the determination of an appropriate educational placement for a student, the IDEA does not explicitly require parental participation in site selection”. The Court said that “[s]o long as the location of services is based on and capable of implementing the student’s IEP, local educational agencies generally have discretion in selecting the appropriate site”. The Court pointed to the fact that the parents “cite a litany of concerns” they had with the district’s recommended placement but do not “present any evidence that the hearing officer erred in finding that [the student’s] IEP [T]eam carefully considered [the student’s] needs and [the parents’] concerns and the record “fully supports the hearing officer’s conclusion on this issue”. The Court said that the matter was simply a case where the student’s parents disagreed with the IEP [T]eam’s recommended school placement.102 As it relates to the July 29, 2014 IEP Team meeting, the hearing officer concluded “that the [d]istrict did not significantly impede [the parents’] right to participate in planning [the student’s] education for the 2014-15 school year”. The Court was in agreement “with the hearing officer’s conclusion that the evidence does not support a finding that the [parents] were not able to participate in the July 29 meeting or that the discussion was unduly limited”. Regarding this, the Court pointed to the fact “that the IEP [T]eam reviewed each area of concern for [the student] and revised several of his goals”. Additionally, and “[a]s the hearing officer found, [the parents] gave feedback throughout” and “[i]ndeed the IEP made several adjustments specifically in response to [the parents’] requests, including adding assistive technology to assist [the student] and agreeing to conduct comprehensive evaluations and assessments.” Regarding the fact that The Court does not explain on what basis the IEP Team could determine an appropriate placement for the student in light of the fact that the IEP Team did not review or update the student’s IEP in many relevant areas, review the student’s anticipated needs, and receive information from the student’s parents.

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the parents were not given a copy of the draft IEP before the IEP Team meeting, the Court said that, “as [the parents] concede, at the time of the meeting [the district] was not under any specific statutory or regulatory obligation to do so”. That being the case, the Court found that the failure of the district to provide the parents with a copy of the draft IEP prior to the IEP Team meeting did “not constitute a procedural violation, must (sic) less one that significantly impeded [the parents’] ability to participate”. 103 Finally, the parents argue that the district sent the student’s “educational records to private schools without their consent” “They contend that had the [d]istrict let [the parents] play a larger role in selecting which records would be sent to prospective schools, it would have enabled [the parents] to better participate in the process of assessing a location’s ability to implement [the student’s] IEP, and therefore the failure to adequately involve the parents in this process significantly impeded their ability to participate in planning [the student’s] educational placement, resulting in a FAPE denial”. The Court concluded that the parents “offer[ed] no precedential support” for the parent’s argument and that it was unsupported by the record.

Regarding the latter, the Court said that the parents initially consented to the disclosure of the student’s records and by September the parents may have withdrawn consent for at least some of the records. The Court held that even if this had been the case, the parents “have failed to adequately connect the alleged disclosure of confidential records after the point at which consent was withdrawn to [the parents’] ability to meaningfully participate in [the student’s] educational placement”.

With all of the above in mind, the Court concluded “that [the student] was denied a FAPE during the period between July 16, 2013 and July 29, 2014 104 due to the [d]istrict’s significant impediment of [the parents’] participation in their son’s educational planning during this timeframe”. As a remedy, the Court remanded the matter to the hearing officer for a determination of the amount of compensatory education due the student.

PRESENT LEVELS OF PERFORMANCE Application of the New York City Dep’t of Educ., Appeal No. 22-019 (May 2, 2022) Dispute: Did the IEP’s present levels of performance accurately report the student’s academic achievement and functional performance and how the student’s disability affects his progress in relation to the general education curriculum?

The parents also argue here that the district “violated [their] right to participate by refusing to reconvene or otherwise consider information the [parents] provided after the meeting, principally a letter from [the student’s] psychologist”. With respect to this, the Court held that since the parents had not raised this issue with the hearing officer, the parents had not exhausted their administrative remedies relative to this issue and that therefore it would not consider the issue.

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This was the 2013-14 school year.

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Conclusion: The SRO concluded that the present levels of performance set forth in the IEP were appropriate.

Basis of the SRO’s Decision: “Among the elements of an IEP is a statement of a student’s academic achievement and functional performance and how the student’s disability affects his or her progress in relation to the general education curriculum” “In developing the recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations”.

In this case, the SRO concluded that “[o]verall, even if the district representative’s testimony at the impartial hearing reflected a narrow view of the student’s needs, as argued by the parents, the present levels of performance accurately reported the results of the evaluative information that was before the CSE [and] included the main areas of concern raised by the parents, the teacher, and as reported in the psychoeducational evaluation report”.

RELATED SERVICES Thomason v. New York City Dept of Educ., 23-cv-8654 (LJL), 2025 WL 307223 (S.D.N.Y. Jan. 27, 2025) Issue: IEP – related services Dispute: Whether the district’s school had the ability to provide the student with the related services and educational program in his IEP. Conclusion: The District Court ruled that the testimony showed that the district’s school had the ability to provide the student with the related services and the educational program in his IEP. Key Take Away: Notwithstanding the parent’s claim that it was “mathematically impossible” for the district to provide the amount of related services and educational program in the student’s IEP, the district’s evidence showed that it would be able to do so; thus finding the parent’s claim “purely speculative”.

Reasoning: The student in this matter receives special education as a student with a Traumatic Briain Injury.

He has severe global impairments and delays.

The district’s CSE met in February 2022 to develop the student’s IEP for the 2022-2023 school year. The resulting IEP recommended that the student be placed in an 8:1+1 class, receive 16 hours of related services a week, and have a 1:1 transportation health paraprofessional.

The parent filed a due process complaint on July 6, 2022, stating that the student had been denied a FAPE for the 2022-2023 school year and requesting tuition reimbursement. The parent 471

said that the recommended school “had insufficient school hours to provide the related services mandated in [the student’s] IEP.” The impartial hearing commenced on September 20, 2022. The parent again argued that it would be “mathematically impossible” for the school to comply with the mandated instruction and the related services in the IEP. The district argued that the public school would be able to provide the services as push-in services. In its March 2, 2023, decision, the IHO agreed with the parent and stated that the district’s argument was conclusory and unpersuasive. Because of this, the IHO found the district’s recommended school inappropriate.

The district appealed to the SRO. The SRO reversed the IHO. The SRO looked to testimony that the district had the ability to implement both the 16 hours of related services a week and the student’s program in the recommended IEP. Additionally, the SRO pointed to testimony that the district had the necessary personnel in the school to provide the related services in the IEP. The SRO also pointed to testimony that if the school did not have such personnel, then it would use outside providers. The SRO also pointed out that district staff had testified that related services had been provided after school, after hours, or outside of the school’s regular hours. The SRO concluded that the parent’s claim that the district did not have the ability to provide the student with the related services and program in his IEP was “merely speculative”. The SRO concluded that the district offered the student a FAPE for the 2022-2023 school year.

The parent brought the matter to the United States District Court for the Southern District of New York. The parent continued to claim that it was “mathematically impossible that the school day could fit in the student’s related services”. The District Court agreed with the conclusions of the SRO. The District Court said that since the school could provide the student with either pull out or push in services that extended beyond a single period, the school was not bound to provide services only within its own regularly scheduled periods. The District Court also pointed to testimony by the district that the school would be able to accommodate 16 hours of related services. The District Court further pointed to the testimony that, if necessary, the district could provide related services outside of the school’s regular hours. The District Court concluded that without additional evidence that the school could not comply with the IEP, the parent’s concerns were “purely speculative”.

Rivas v. New York City Dep’t of Educ., No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024) Issue: IEP – related services Dispute: Should the student have been provided music therapy in order to receive a free appropriate public education.

Conclusion: The Court of Appeals deferred to the conclusions of the impartial hearing officer and the state review officer that the lack of music therapy did not deny the student a free appropriate public education.

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Key Take Away: In order for a parent to show that music therapy was required in order to provide the student a free appropriate public education, the parent must, for example, show that the benefits of that related service could not have been provided in another way.

Reasoning: The parent claimed that the student was denied a “free appropriate public education” because the student was denied music therapy. The Court of Appeals “deferred” to the impartial hearing officer’s and state review officer’s conclusions that the benefits of music therapy could have been obtained through other educational interventions.

Erde v. New York City Dep’t of Educ., Case No. 20-CV-02181, 2024 WL 4989225 (E.D.N.Y. Dec. 5, 2024) Issue: IEP – related services Dispute: Whether 60 minutes or 40 minutes of a related service was an appropriate duration for a student’s needs.

Conclusion: The Impartial Hearing Officer and the State Review Officer decided that 40 minutes rather than 60 minutes was an appropriate duration for the provision of a related service.

Key Take Away: In deciding the length of a related services session, it is appropriate to consider educational benefit and also the ability of the student to sustain the length of that session.

Reasoning: The student has been diagnosed with cerebral palsy and a seizure disorder. He cannot speak or walk. The student needs help in all areas of mobility and activities of daily living.

In early 2018, the CSE met for an annual review to discuss the student’s IEP. The CSE recommended that the student receive related services in 40-minute sessions. In July, the parents filed a due process complaint, which included the length of the related services.

The Impartial Hearing Officer (IHO) and the State Review Officer (SRO) rejected the parents’ position. The IHO found that there was “no evidence” that the student would have regressed with the recommended 40-minute sessions and explained the suitability of shorter sessions. The SRO agreed with the IHO that the recommended 40-minute sessions were sufficient to allow the student to receive educational benefit and that the student would not be able to sustain 60minute sessions.

The District Court concluded the SRO’s findings were “sensible reasoned and based on a thorough review of the record”.

Perez v. New York City Dept. of Educ., 21-CV-10415 (VSB), 2025 WL 26071 (S.D.N.Y. Jan. 3, 2025) Issue: IEP – related services, deference to SRO Dispute: Whether related services of 30 minute a session were appropriate 473

Conclusion: The court concluded that related services of 30 minutes a session were appropriate.

Key Take Away: A well-reasoned SRO decision about the length of related services sessions will be upheld by a Federal Magistrate and the District Court. In this case, the student could not tolerate any more than 30-minute sessions.

Reasoning: The parent filed a due process complaint. The due process complaint was reviewed by an Impartial Hearing Officer (IHO) and then by a State Review Officer (SRO). The parent claimed that 30 minutes of related services for the student was too short and should be replaced by longer sessions. The SRO disagreed and concluded that related services of 30 minutes were sufficient.

The parent then filed a lawsuit in the United States District Court for the Southern District of New York. The parent’s lawsuit was referred to a Federal Magistrate. The parent claimed again that 30 minute sessions of related services were too short for the student. The Magistrate concluded that the SRO’s decision that related services of 30 minutes were sufficient was “well-reasoned and owed deference” (reliance).

The parent asked the District Court Judge to review the Magistrate’s conclusion that 30 minute sessions of related services were sufficient. The Judge found that the SRO’s conclusion was supported. He pointed to testimony that the student “had a short attention span, was easily fatigued and had very low stamina and tolerance of physical activities and was therefore unable to attend sessions of longer than 30 minutes”. The parent pointed to testimony that the student was “alert”. The Judge said that the description of the student as “alert” was not inconsistent with the SRO’s conclusion that the CSE had a basis to recommend three 30-minute sessions per week of related services.

The Judge concluded this type of dispute is the kind of decision where reliance on the SRO is appropriate.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Were the parents’ claim that a FAPE for the student required music therapy services correct.

Conclusion: Upholding the SRO, the Court concluded that music therapy services were not necessary for the student to receive a FAPE.

Basis of the Court’s Decision: In this case, the student “has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living”. “The student communicates only through vocalization, facial expressions, body movements, and eye 474

gazing”. He is “incapable of learning on a typical academic trajectory”. At the time of the proceeding the student was sixteen or seventeen years old.

The district held a CSE meeting in March 2021. At that meeting, the CSE developed the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a particular district 75 public school, enroll in a 12-month program in a 6:1+1 special class, and receive extensive related services in occupational therapy, physical therapy, speech-language therapy, vision education services as well as full-time individual health paraprofessional services.

In a letter dated June 23, 2021, the parents advised the district that they disagreed with the IEP’s recommendation to place the student in the District 75 school and of their intent to unilaterally enroll the student in a private school. The parent signed a contract with the private school on July 2, 2021.

The parents requested a due process hearing in October 2021 that the district had denied the student a FAPE and of their intent to enroll the student in a private school. Among other things, the parents asserted that music therapy as a related service was necessary in order for the student to receive a FAPE. The IHO found that the district did not provide the student with a FAPE, reasoning, among other things, that the IEP did not include music therapy services. The appropriateness of the student’s private school program was not in dispute by the parties. The IHO further found that the equities supported the parents’ request for reimbursement.

The district appealed to the New York State Review Officer (SRO). Among other things, the SRO found that the student did not require music therapy services s in order to receive a FAPE. The parents appealed the SRO’s decision to federal court. In its decision, the Court pointed out that the IDEA ensured “only an appropriate education, not one that provides everything that might be thought desirable by loving parents”. See Walczak v. Florida Union Sch. Dist., 142 F. 3d 119, 132 (2d Cir. 1998). Consistent with this, the Court pointed to Rowley’s language that “the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go with IDEA” Bd. of Educ.v. Rowley, 458 U.S. 176, 199 (1982).

The Court then pointed to the fact that the SRO had, “after a thorough review of the record, determined that music therapy “was not require to provide the [student] with a FAPE.” Regarding this, the Court pointed to the SRO’s conclusion that the “CSE addressed the goals underlying the private school’s recommendation for music therapy services … through other related services rather than by replicating [the private school’s] music therapy approach”. The Court also pointed to the record that showed that the private school’s director of special education testified at the hearing that “even though she felt [the student] could benefit from additional services, she by and large agreed with the slate of services recommended by the March 2021 IEP. 475

Additionally, the Court pointed to the SRO’s emphasis “that music was not entirely absent from the 2021-2022 IEP. For example, the IEP “called for [the student’s] interests to be incorporated into his school day, and included music specifically among the age-appropriate activities and social opportunities to which [the student] should be exposed”.

The Court said that it would afford “deserved weight to the well-reasoned judgement of [the SRO] regarding the necessity of music therapy to the 2021-2022 IEP”. And it affirmed the SRO’s conclusion that music therapy as a related service was not necessary to provide the student with a FAPE. Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether it was appropriate for the student’s related services sessions to be 30 minutes or 60-minutes in duration and whether the Court, in part, relied on retrospective evidence.

Conclusion: The Court affirmed the decisions of the IHO and SRO and concluded that because of the student’s needs, 30-minute sessions of related services were appropriate. Further, the Court relied, in part, on impermissible retrospective testimony in its determination relative to the appropriate length of the student’s related services sessions.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

Plaintiff argues that the IHO and the SRO were “wrong to conclude that 30-minute sessions for related services were appropriate for [the student] as opposed to 60-minute sessions” and that the district “offered no credible testimony or evidence to explain why the CSE reduced [the student’s] related services mandates across the board”. The Court disagreed, stated that “the record is replete with evidence that [the student] struggles with staying awake, staying engaged, and being lethargic,” and cited evidence related to that. The Court further reviewed relevant conclusions and evidence set out in the IHO and SRO decisions. Regarding this, the IHO “concluded that the IEP’s 30 minutes (as opposed to 60-minute sessions) for [related services] were appropriate because [the student] emotionally and physically can’t sustain a longer period of time than that”. Along similar lines, the SRO concluded that while the student’s private school and the parent preferred 60-minute sessions, “the hearing record indicated that [the student] showed minimal and limited responses, slept frequently, was lethargic and medically fragile, and therefore was unable to emotionally and physically sustain a related services session longer than 30 minutes”.

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The Court also pointed to the SRO’s conclusion “that the record reflected that [the student’s] session lengths may be modified and increased as [the student] demonstrated progress throughout the year, which she deemed to be appropriately tailored to [the student’s] needs”.105 The Court found “the SRO’s conclusion to be reasonable and well-supported by the record and agree[d] that [the student] did not require 60-minute related services sessions in order to receive a FAPE”.

Application of a Student with a Disability, Appeal No. 23-102 at pp. 7-15 (July 31, 2023) Dispute: Whether the CSE properly determined the student’s need for related services?

Conclusion: The CSE did not properly determine the student’s need for related services.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

The parent requested that the student receive full time 1:1 nursing services as a related service.

The CPSE and CSE did not include such services in their relevant IEPs. This was because the parents had not submitted the proper medical form to the district in order for it to investigate and determine, with information from the student’s pediatrician, whether or not the student’s IEP should include 1:1 nursing services. The IHO concluded that this procedure was not error and further that the absence of nursing services in the IEP was not a denial of a FAPE. “The parent’s main contention on appeal with respect to the IHO’s FAPE findings is that he incorrectly determined that the district’s failure to recommend a 1:1 nurse for the student did not rise to the level of a denial of FAPE”.

The SRO determined that the CPSE/CSEs “had sufficient information by which to consider whether the student required a 1:1 nurse”. The SRO also found that “[f]or each of the school years at issue, neither the CPSEs nor the CSE engaged in any meaningful discussion regarding the student’s need for a 1:1 nurse and improperly placed the burden to obtain medical forms on the parents.” Reference Omitted. “Instead, the evidence shows that the district has another team, individual or office that is not part of the CSE that actually decides whether this student’s IEPs [during the relevant school years] would include a 1:1 nurse”. 106 Note that citing to such testimony is retrospective evidence with respect to the IEP, which is prohibited. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 185 (2d Cir. 2012).

106 Note here that the SRO advised that “the case bears considerable similarity to litigation that was brought against the district which complained of systemic policies that never required the Office of School Health or the Office of Pupil Transportation -- agencies critical to providing the services at issue in this action – to appear for IEP meetings”. See J.P. v. New York City Dep’t of Educ., 324 F. Supp. 3d 455, 464-65 (S.D.N.Y. 2018). The SRO here reported that the district defendant in that case “represented to the Court that the policy had been changed”; which the Court was “unwilling to accept”. Clearly for good reason.

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The SRO held that “[t]his is not the process called for under IDEA because [it] is the CPSE or CSE that is required to make the determination of which services should be placed on a student’s IEP and it is the district’s responsibility to ensure that the individuals who can make appropriate decisions are part of the CSE process”. The SRO continued that “[p]lacing the onus on the parents, rather than the district to pursue the further consultation with the district doctor and obtain the required medical forms is problematic since the district may not delegate its responsibilities to the student under IDEA to the parents”. The SRO further wrote that “[t]he district members of the CPSEs and CSE in this case failed to appreciate that they were the entities responsible to determine whether the student needed a 1:1 nurse in order to receive a FAPE and recommend a 1:1 nurse if the student required one”.

This being the case, the SRO held that the “IHO erred in accepting the district’s explanation that a 1:1 nurse could not be placed on the IEP by the CPSE or CSE and that the parents were required to send documentation to another office for a later determination of whether the student required a 1:1 nurse” This, “especially where there was no evidence in this case that the CPSE or CSE’s were merely waiting to complete the student’s IEPs over the course of multiple meetings and that the IEPs in the record were merely draft documents awaiting further action.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Whether the student required music therapy as a related service in order to receive a FAPE. Conclusion: The SRO affirmed the IHO’s decision and determined that the student did not need music therapy as a related service in order to be provided with a FAPE. Basis of the SRO’s Decision: “[A]n IEP must include a statement of the related services recommended for a student based on such student’s specific needs”. 8 NYCRR 200.6(e); See 20 U.S.C. 1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4). “Related services is defined by the IDEA as “such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education …”. Emphasis supplied.

In this case, the parent requested that the student continue to receive “music therapy” as a related service at the district school like she was receiving at the unilateral placement. The parent asserted that the student needed such a related service so as to receive a FAPE. The director of the private school explained the purpose of the music therapy and how such therapy addressed the student’s needs. These needs included, among other things, the need for self-regulation; the need for redirection; the need to sustain attention to task; the need to increase the student’s frustration tolerance; the need for the student to increase her receptive and expressive language skills; the need for the student to improve her interaction and participation with other students; and her need to learn to coordinate her movements and actions.

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The SRO reviewed the district’s IEP and concluded that “it provided related services …and supports to address the student’s needs that the unilateral placement addressed through music therapy. More particularly, among other things, according to the SRO, the IEP “acknowledged multiple times throughout the document that the student loved music, enjoyed listening to it, and was motivated by it”. “[T]he CSE discussed that music could be used as an instructional tool to support with engagement throughout the school day” and to provide for “music breaks or music presented recreationally”. To address the student’s communication processing and sensory regulation needs, the student’s IEP recommended supports for the student’s management needs. Additionally, “some of the student’s annual goals included multimodal and sensory-based approaches that incorporated environmental, verbal, tactile and gestural cues when completing an activity”. Regarding this, the SRO pointed out that three speech-language goals were relevant. In particular, these goals addressed the student’s need for comprehension skills, increasing her expressive language skills, and increasing her social/pragmatic communication skills. The SRO pointed to the fact that the IEP “recommended that the student receive five 60-minute sessions per week of individual speech-language therapy”.

In addition to this, the SRO pointed to the relevance of the student’s OT goals and objectives.

Particular goals and objectives addressed the student’s “participation in academic, classroom, and self-care activities” so as “[t]o address the student’s need to improve her participation and frustration tolerance and another goal and set of objectives to increase the student’s “participation in play and leisure activities throughout the day”. A third OT “short term objective expected the student to demonstrate active arm movement” tied to music. Other short term OT objectives were designed to improve the student’s emotional regulation…” The SRO pointed to the fact that the student’s IEP recommended the provision of five 60-minute sessions per week of individual OT. As indicated, the music therapy provided by the student’s unilateral placement was extensive, comprehensive and overseen by music therapists and provided a way to address many of the student’s relevant needs. However, and citing many cases, the SRO pointed out that “comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE[,] [R]ather it must be determined whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice, and whether the IEP developed by its CSE through the IDEA’s procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits – irrespective of whether the parent’s preferred program was also appropriate”.

The SRO concluded that “review of the district’s [] IEP reveals that it provided related services – albeit in a different way than those the parent preferred – and supports to address the student’s needs that [the unilateral placement] addressed through music therapy”. Further, “[t]he district was not required to replicate the exact same services that the parent preferred for the student 479

in the private school”. The SRO said that “[t]here was no denial of a FAPE to the student in this case merely because the district did not opt to use music therapy as a related service in the same manner as [the private school].”

STARTING DATE – WHEN REQUIRED TO BE IN EFFECT Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the IEP was timely issued when it was created before the school year in question.

Conclusion: The Court held that the IEP was timely issued because it was created before the school year in question.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parents argued that the district issued a meeting notice dated February 14, 2018 for a CSE meeting dated April 24, 2018 and on February 27, 2018 for a CSE meeting dated March 15, 2018.

The parent argued that these meetings and the IEPs developed from them were untimely as the notices “indicated that the IEP meeting for (the student) must be held no later than January 30, 2018. Regarding this, the Court pointed out that both the IHO and SRO agreed that the 2018 date was a “typographical error”. Moreover, the Court also pointed out that the IHO and the SRO “both concluded that the law only requires that an IEP be created before the upcoming school year, which was properly achieved by the March 2018 CSE meeting.

Application of a Student with a Disability, Appeal No. 23-093 (June 23, 2023) Dispute: Did the district’s failure to schedule a CSE meeting prior to the beginning of the school year and the fact that the IEP was not finalized with program recommendations until October violate the student’s right to a FAPE and was relief therefore appropriate?

Conclusion: The district’s failure to schedule a CSE meeting prior to the beginning of the school year and the fact that the IEP was not finalized with program recommendations until October denied the student a FAPE; however, because the student continued to receive pendency services and also because of the parent’s lack of cooperation in scheduling the CSE meetings, no relief was appropriate.

Basis of the SRO’s Decision:

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In this case, the student was eligible for special education as a student with an intellectual disability and was recommended for extended school year services.

The parent’s due process complaint notices included that the district “deliberately” “failed to develop and implement an IEP prior to the start of the 2022-23 school year. The district disagreed. “The IHO found it undisputed that the CSE did not complete an annual review or develop an IEP prior to the beginning of the 2022-23 school year”. According to the SRO, the IHO also “reviewed the district’s attempts to schedule meetings and the reasons offered for cancelling scheduled CSE meetings, attributing fault to both the parent, for meetings scheduled prior to June 2022, and the district, for meetings scheduled in June 2022 and found that the cancellation of at least one meeting in September 2022 was justified”. The IHO also found that “the delay in holding a CSE meeting for the student’s annual review for the 2022-23 school year did not deny the student a FAPE or deprive the student of educational benefits.” This because the “the parent decided to reject the district placement and keep the student in his pendency placement”. The parent appealed and as a remedy, requested an award of “prospective” “backend compensatory education”.

“The IDEA and State regulations require the CSE to meet at least annually to review and, if necessary, to revise a student’s IEP; however, there is no requirement that an IEP be produced at a parent’s demand. Further, the regulations do not preclude additional CSE meetings, specifically prescribe when the CSE meeting should occur, or prevent later modification of an IEP during the school year through use of the procedures set forth for amending IEPs in the event a student progresses at a different rate than anticipated. The IDEA’s implementing regulations and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. As a matter of State law, the school year runs from July 1 through June 30. Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE.” Upon review of the record, the SRO concluded that the parent was at “relative fault” with respect to the district’s failure to develop and implement an IEP prior to the beginning of the 2022-23 school year. The SRO held that “contrary to the IHO’s reasoning, the student remaining in his pendency placement and the parent’s relative fault in the scheduling difficulties do not factor into an analysis of whether the lack of a timely IEP impeded the student’s right to a FAPE or the parent’s opportunity to participate”. Emphasis added.

The SRO concluded that “it is undisputed that the first CSE meeting did not occur until August and the IEP was not finalized with program recommendations until October”. The SRO said that “[t]o be sure, [as a procedural error] the late development of an IEP for the student does not necessarily result in a per se denial of a FAPE and the IHO was correct in considering the degree to which the failure to develop an IEP impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits”. In this case, 481

the SRO said that “the parent[] [was] unaware of the CSE’s recommendation and the student was without an IEP at the start of the [12-month] 2022-23 school year. Accordingly, [the SRO held that] a review of the hearing record showed that, because the district did not have an IEP in place before the start of the 2022-23 school year the district denied the student a FAPE.” With respect to the remedy, the parent sets forth that because “the student will age out of the district after the completion of the 2023-24 school year and [because] it would be impossible to reimburse the student for the compensatory education due within such time frame” that a “back end compensatory education award” that would be “prospective in nature and therefore must be issued in the form of a monetary judgement capable of facilitating a year’s worth of tuition at a post-secondary learning institution” was necessary.

The SRO said that this kind of fund was possible and “may be appropriate in certain instances”.

See e.g., Streck v Bd. of Educ, of E. Greenbush Cent. Sch. Dist., 408 Fed. App’x 411 (2d Cir Nov. 30, 2010). At the same time, the SRO said that “to the extent that [the remedy] resembles monetary damages, particularly to [the] extent the parent requests money to be used for an unspecified post-secondary educational program to be delivered past the student’s age of eligibility, the IDEA does not provide for, nor have the courts allowed monetary damages”.

Further, the SRO pointed out that “the parent has failed to allege what services or instruction the student did not receive during the period of time when the 2022-23 IEP was not developed” and that “[i]n fact, the student continued to receive related services and instruction under a 2019 pendency agreement”. This being the case, the SRO found that “an award of compensatory damages is not warranted”.

The SRO also pointed out that compensatory education was an “equitable remedy” and that “equitable considerations are relevant in fashioning relief under the IDEA”. Consistent with this, and with respect to the parent’s remedy, the SRO advised that the “relative fault” of a district or parent “may be weighed in assessing what relief, if any, is warranted to remedy a denial of FAPE arising from the district’s failure to ensure an IEP was in effect for the student prior to the beginning of the school year.” The SRO wrote that “even [if the SRO] were to find that compensatory education was warranted, the parent’s actions regarding the scheduling of CSE meetings for the student’s annual review, if considered unreasonable, could be factored into an award of compensatory education and warrant a reduction or denial of an award on equitable grounds”.

In this case and regarding equity, the SRO concluded that “a complete denial of relief” would be warranted. In this regard, the SRO said that “[t]he parent’s actions with respect to the scheduling of the CSE meeting for the student’s annual review, specifically, in first refusing to hold the CSE meeting prior to June 2022 despite the district’s requests, and then in requesting additional information just prior to the scheduled June 9, 2022 CSE meeting and requiring that the meeting be held at specific times, taken together, establishes a lack of cooperation, which hindered the district’s ability to offer the student a FAPE prior to the start of the 2022-23 school year”.

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Application of a Student with a Disability, Appeal No. 23-039 (May 15, 2023) 107 Dispute: Did the district’s failure to provide the parent with an IEP prior to the beginning of the school year deny the student a FAPE. Conclusion: The SRO found that the district’s failure to provide the parent with an IEP prior to the beginning of the school year contributed to a denial of a FAPE. Basis of the SRO’s Decision: In this case, the student has been diagnosed with autism spectrum disorder and, according to the record, needed a 12-month program a highly structured learning environment and had needs relating to behavior management, language development, and social skills.

“The district is required to have an IEP in effect for each student with a disability at the beginning of the school year and provide a copy of the IEP to the parents”. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 (2d Cir. 2005) (citing to the proposition that school districts must only ensure that a child’s IEP is in effect by the beginning of the school year and that the parents are provided a copy); see also 34 CFR 322(f); 300.323(a); 8 NYCRR 200.4(e)(1)(ii), (e)(3)(iv). “Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE if the violation (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits”. See 20 U.S.C 1415 (f)(3)(e)2; 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

In this case, the parent requested a copy of the IEP on a number of occasions, but did not receive it prior to the beginning of the 12-month school year. “The district acknowledges that the failure to provide the parent with an IEP is a procedural violation but argues that it does not rise to the level of a denial of FAPE because the parent attended the CSE meeting, was aware of the contents of the IEP, and received both the prior written notice and the school location letter”.

The SRO found that “the parent did attend the CSE meeting and there is evidence that she had at least some knowledge of the program and placement recommendations” in the IEP. The SRO also found, however, that in the parent’s 10-day notice, the parent advised the district that “in the absence of an IEP or any information regarding the public-school placement, my client will place the student [at the private school] and if the parent’s concerns are not addressed, we will This SRO decision addresses in relevant part procedural issues relating to (1) the sufficiency of evaluative information; (2) the parent’s receipt of the IEP; and (3) the availability of information regarding the assigned publicschool site relative to the school location letter. As indicated above, the SRO did not find that issues relating to the parent’s receipt of the IEP resulted in a denial of a FAPE alone. However, the SRO also concluded that each of the three issues “contributed to” the violation of a FAPE; which is to say that these three procedural issues when taken together or on a “cumulative” basis resulted in the denial of a FAPE to the student. See L.O. v. New York City Dep’t of Educ., 822 F.3d. 95,123-24 (2d. Cir. 2016); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012).

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request an impartial hearing to pursue public funding for the student’s tuition and services at this placement.”

The SRO pointed out that the prior written notice (which the parent received) “is not meant to be a substitute for an IEP and does not contain important educational information about the student such as the student’s present levels of performance, annual goals, and management needs”.

The SRO concluded that in this case, “the parent put the district on notice that she was requesting the April 2020 IEP and would pursue a unilateral placement at public expense absent receipt of that document”. The SRO pointed out that the parent’s dispute was the district’s “failure to provide” the parent with a copy of the April 2020 IEP “in the first instance, as it was obligated to do”. The SRO continued that “[t]he district was given an opportunity to cure that procedural defect but failed” to provide a copy of the April 2020 IEP to the parent prior to the beginning of the student’s 12-month school year as required. “[U]nder the circumstances present, the parent lacked a complete understanding of the student’s educational program, as shown in both her 10day notice and the due process complaint notice” because of this.

The SRO concluded that “the district’s failure to provide the parent with a copy of the April 2020 IEP contributed to a denial of a FAPE to the student”.

E.L. and D.P. v. Bedford Cent. Sch. Dist., No. 18 Civ. 3062 (NSR), 2022 WL 3667189 (S.D.N.Y. Aug. 25, 2022) Dispute: Whether the district timely provided a copy of the IEP to the parents.

Conclusion: The Court concluded that for the 2015-2016 school year, the district timely provided a copy of the IEP to the parents. For the 2016-2017 school year, the Court upheld the SRO and determined that it was not necessary to decide that issue as the parents were able to meaningfully participate at the relevant CSE meeting.

Basis of the Court’s Decision: School districts do not have an obligation to provide a parent with an IEP at any time requested. “[I]nstead, school districts must only ensure that a child’s IEP is in effect at the beginning of the school year and that the parents are provided an IEP at or prior to that time. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 (2d Cir. 2005); see also, N.K. v. New York City Dep’t of Educ., 961. F. Supp. 2d 577, 586 (S.D.N.Y. 2013). Moreover, “even when a school district failed to timely provide a copy of the IEP to the parents, a school district may nonetheless have fulfilled its IDEA procedural obligations where the parents had the opportunity to participate in the decisionmaking process” (Cerra, 427 F.3d at 193; N.K., 961 F. Supp. 2d at 586).

In this case, and with respect to the 2015-2016 school year, the district asserts that it properly provided the parents with a copy of the IEP promptly after the relevant January 2016 CSE meeting which determined the student eligible for special education services. The parents point to the 484

district’s child find violation and argue that the district should have provided the parents with an IEP “at a minimum as late as September 2014”.

The Court first pointed that “[n]either the IHO nor the SRO addressed the question of the timeliness of the IEP for the 2015-16 school year”. Upon its own review, the Court found “that the school district did not untimely deliver this IEP”. In particular, the Court found that the district provided the parents with a copy of the IEP after the January 2016 IEP meeting where the district determined the student eligible for special education.

Moreover, the Court also found that “the record clearly shows that the parents were able to meaningfully participate” in the January 2016 CSE meeting.

With respect to the 2016-2017 school year and the timeliness of the district’s providing a copy of the IEP to the parents, here the SRO did consider the issue. Among other things, the SRO noted that the record indicated that the IEP was mailed on August 30, 2016 and received by the parents on September 3, 2016. With respect to this, the SRO further noted that “case law is unclear as to whether the date of the mailing or the date of receipt controls for the purpose of when the School District provides an IEP to the parents”. “[T]he SRO concluded that in any event, any procedural error would not constitute a denial of FAPE because the parents were aware of the program recommended by the July 2016 CSE and had already decided to reject it and unilaterally place the student [at a private school] prior to the time the district was required to implement the IEP”.

The Court found it appropriate to defer to the SRO’s opinion as it found it to be “thorough and well-reasoned”. The Court said that it was not critical to decide whether the date of mailing or the date of receipt controls as the Court agreed with the SRO that “there [was] no actionable violation even if the IEP was untimely provided.” In particular, the Court pointed out that there was “no dispute that [the student’s] parents attended and participated at the CSE meeting in July 2016 to discuss development of an IEP for the 2016-2017 school year. The Court went on to say that there was also “no dispute that the parents rejected the IEP at the CSE meeting in July 2016”.

The Court further found that “there [was] no evidence on the record that the [parents’] receipt of the IEP on September 3, 2016, two days after the first day of school, had significantly impeded their opportunity to participate in the decision-making process or caused a deprivation of educational benefits to the [the student]”. That being the case, the Court concluded that “even if the School District provided the IEP in an untimely manner due to the late receipt by the parents, this procedural violation [did not] amount to an actionable IDEA violation”.

TRANSITION SERVICES Perkiomen Valley Sch. Dist. V. R.B., 18-3-009, 121 LRP 13443 (U.S. D.C. E.D.PA. (Apr. 13, 2021)) Dispute: Whether the District provided the student with appropriate post-secondary services.

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Conclusion: The District Court judge held that the district’s recommended transition services did not provide the student with a FAPE Basis of the Court’s Decision: The student has been eligible for special education since she was one year old. Her disabilities include Intellectual Disability, Speech/Language Impairment, and physical disabilities. Among other things, she has brain abnormalities that affect her ability to process language and other information. She also has trouble with social skills, peer relationships and emotional and behavioral functioning. Her strengths include self-advocacy skills, oral language skills, timely completion of individual and group assignments, and forming and maintaining friendships.

In 2015-16, the student was 19 years of age, had an 8th grade reading level, and was in her fourteenth year of schooling. Her independent living skills needs were managing finances, travel instruction/transportation, and food preparation. The transition section of her June 1, 2015 IEP 108 identified a number of post-secondary transition needs including self-advocacy and social skills. The student’s post-secondary goals included vocational training for work in childcare or technology, employment in the childcare field, and. living with family or a roommate. The IEP Team determined that the student would focus on her functional skills rather than her academic skills. The district proposed that the student attend either the high school, the Technical College High School Pickering Program’s Early Childhood Education Program (Pickering Program) or another school age career preparation program. The IEP Team also concluded that the student was eligible for extended school year programing.

Upon review and with respect to the adequacy of the student’s 2015-16 transition program, the Court agreed with the hearing officer that none of the programs offered by the district were appropriate. The Pickering Program did not necessarily result in certification and was a vocational-technical regular education program, not a community-based instructional program which was appropriate for the student. Importantly, the Pickering Program was also limited to only one vocation – child care. However, it was not at all certain that the student’s future vocation would be childcare. Further, the Court held that the Pickering Program would not have provided the student with adequate instruction in transportation and independent living skills.

Strengthening these skills was important the Court said as one of the student’s 2015-16 postsecondary transition goals was living independently with a roommate and her post-secondary life would likely involve public transportation. With respect to the high school program proposed by the district, the student would receive instruction in academic and vocational skills and awareness with part-time on-the-job training in an area of interest. The Court concluded that there was insufficient information about this program to assess it. The Court also concluded that this program, which involved full time learning support, was not appropriate for the student as she had already attended classroom instruction on independent living skills and had experienced the simulated Apartment program. Further, the Court also concluded that information regarding 108

The decision does not indicate that the student attended any of the IEP Team meetings.

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this program’s vocational component was only “vaguely” described. Finally, no information was provided about any alternative school age career preparation program and the Court advised that therefore it could not evaluate such programs. With respect to extended school year programs recommended for the student the Court found that the “MCCC Bridge to College Program’ was a program that prepared students for college – which the student had not demonstrated a capacity for and an interest in. The MCIU Compass Program offered instruction in decision-making skills for independent living and work experience, travel training, selfadvocacy, work-based social skills, and vocational; exploration., This program was not appropriate for the student because she had already acquired simulated independent living skills as well as instruction in independent living skills. As a consequence, the Court found that this program would provide only “de minimus” educational benefit to the student. Finally, the Court said that since there was no information provided about the Perkiomen Valley Middle School East, that there was no way to review that program.

In 2016-17, the student was 20 years old, maintained her 8th grade reading level, and was in her fifteenth year of schooling. The IEP Team met in July 2016 to discuss the student’s program for the 2016-17 school year. The IEP advised that the student had made progress with some functional skills but that she had not yet reached a “satisfactory” level. The student’s independent living skills needs were managing finances, travel instruction /transportation, and food preparation. Her transition needs continued to be self-advocacy and social skills. The IEP Team recommended that the student attend either the high school full time or the Pickering Program in the morning and the Chester County Intermediate Unit (CCIU) Discover Program in the afternoon. The IEP Team met again in December 2016. The district proposed again that the student attend the high school full time or the Pickering Program in the morning and the CCIU Discover Program in the afternoon.

The court held that these programs were inappropriate for the student as they were not likely to provide her with “meaningful benefit”. In addition to the program inadequacies of the high school and the Pickering Program, relative to the 2015-16 school year, the Pickering Program’s sole focus on childcare was now more inappropriate as the student no longer had any interest at all in childcare. Regarding the recommended CCIU Discover Program, which focused primarily on the development of prevocational “soft” skills, the court found this program to be inappropriate for the student because it did not offer the student an opportunity to learn independent living skills. As indicated, it would “return” the student to practicing general employment skills or prevocational “soft skills” -- something that the student had already experienced for a number of years. Finally, the Court pointed out that while the CCIU Program offered other community-based instruction programs for post-secondary transition the district did not offer any reason for its decision not to offer the student any of them.

The student turned 21 by the end of the 2016-17 school year and aged out of special education.

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R.B. v. New York City Dep’t Educ., No. 16-1952-cv, 689 Fed.Appx. 48 (2d Cir. Apr. 27, 2017) Dispute: The parents assert that the district’s failure to provide the student with an in person transition assessment(s) denied the student a FAPE. The district disagrees.

Conclusion: The Court of Appeals held that the lack of an in person transition assessment(s) was not a violation of a FAPE. Basis of the Appeals Court’s Decision: In this case, the relevant transition assessments required by 20 USC § 1414(d)(1)(A)(i)(VIII)(aa) were not done in person and the parents argued that “its failure to do so undermined the development of IEPs that were reasonably calculated to provide the postsecondary goals and transition services required by 20 USC § 1414(d)(1)(A)(i)(A))(i)(VIII)(aa), (bb). According to the Appeals Court, the district “explained in the state administrative proceeding that it did not conduct an in person assessment(s) … because the parents submitted a privately obtained substitute report and the ‘standard vocational assessment required a higher level of reading skills than the student possessed.’” Further, the district “conducted a vocational interview with the parents and consulted with the [student’s] private school teachers about his progress, goals, and preferred learning environment. It also invited [the student] to attend meetings in which postsecondary goals and transition services were discussed but the parents declined to bring [the student] because they felt that he could not sit through meetings. The [district] then incorporated what it learned from these consultations into the IEPs which stat[ed] that [the student] ‘require[d] support in clothing care, meal preparation, household management and consumer skills … and that his parents want[ed] him to seek employment after high school. The IEPs also identif[ied] ‘transition activities’ to enable [the student] to meet these goals, including, for example, ‘trips ‘into the community to purchase items independently and get the correct change’, ‘learn[ing] appropriate phone … and workplace etiquette.’ and ‘learning to make a budget and shop for his own food and for other needed items within that budget’”.

Based on the above, the Appeals Court “agreed “with the District Court and the SRO that the IEPs were reasonably calculated to provide [the student] with the postsecondary goals and transition services required by the IDEA”. Further, the Appeals Court concluded that even if the district’s action constituted a procedural violation of the IDEA, such did not rise to the level of a denial of FAPE because it was not “shown an impediment to the [student’s] right to a FAPE, a significant impediment to their opportunity to participate in the decision-making process, or a deprivation of educational benefits” (see 20 USC § 1415(f)(3)(E)(ii)(I), (II), (III); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

TRANSPORTATION Zimmerman v. Banks, 23-cv-9003 (JGK), 2024 WL 4882370, (S.D.N.Y. Nov. 25, 2024) Issue: IEP -- transportation 488

Dispute: Whether an impartial hearing officer’s decision should be read as providing that the district pay for transportation to and from a private school, both for days that the student attended school and also for days that the student did not attend the private school.

Conclusion: The District Court determined that the decision’s meaning was unclear and remanded the matter to the impartial hearing officer to determine its meaning.

Key Take Away: If the meaning of an impartial hearing officer’s decision relating to the payment of transportation is unclear, it is appropriate to remand the matter to the impartial hearing officer for a determination of the decision’s meaning.

Reasoning: The student in this matter is six years of age and is receiving special education services as a child with a traumatic brain injury. The student is non-verbal and non-ambulatory and receives nutrition through a G-tube.

The guardian of the student decided that the district could not meet the student’s needs and placed the student in a private school for the 2021-2022 and 2022-2023 school years. The student’s guardian also entered into a contract with a transportation company to provide the student with transportation from the student’s home to and from the private school.

The guardian of the student filed a due process complaint in October 2022. It claimed that the district did not provide a free appropriate public education to the student. The impartial hearing officer (IHO) agreed with this. The IHO also determined that the student’s private placement was appropriate for the student’s needs and that equitable considerations favored tuition reimbursement. Regarding the student’s request for transportation services, the IHO ordered that for the 2021-2022 school year the district pay the transportation company for all costs and fees for the student’s transportation to and from school at a rate not to exceed $320 per trip within 25 calendar days of the submission of copies of invoices for such services. For the 20222023 school year the “not to exceed rate” was $345 per trip.

In due course, a dispute arose over whether the district was to pay the transportation company both for days that the student attended school and also for days that the student did not attend the private school. At that time, the guardian filed a complaint in the United States District Court for the Southern District of New York and asked the judge to order the district to pay the transportation company for the entire school year.

The District Court considered the question. It decided that the language of the IHO’s order neither allowed for a broad reading that would require the district to pay for “any transportation costs” or “in accordance with the contract”, nor a narrow reading that would require reimbursement only for services “actually provided”. The District Court concluded that both the argument of the district and of the student’s guardian were plausible. Consistent with prior courts which had remanded the matter to the IHO for further consideration in such circumstances, the District Court remanded the matter to the IHO for a determination as to the meaning of the transportation language in the IHO’s decision.

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Araujo v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS), 2024 WL 2925190 (S.D.N.Y. June 2024) Issue: IEP - transportation Dispute: Whether special education transportation is determined by the Medicaid rates set forth in the Preschool/School Supportive Health Services Program (SSHSP) or the eMEDNY Medicaid Transportation Policy Manual.

Conclusion: The Court decided that special education transportation rates for students with disabilities are controlled by the Medicaid rates in the SSHSP program handbook.

Key Take Away: The cost of transporting special education students to private school is to be calculated based on the lower Medicaid Rate in the SSHSP handbook and not the higher rates in the eMEDNY Medicaid Transportation Policy Manual, which addresses only transportation for medical purposes.

Reasoning: A- student with a disability is entitled to transportation services. The parent “entered into a contract [with a private provider] for specialized transportation services for her daughter to be transported to and from (her private school) during the 2021-22 extended school year”.

The parent filed a due process complaint notice that was resolved through a Findings of Fact and Decision (FOFD) issued by an IHO. The IHO ordered that the district pay for the student’s transportation during the 2021-2022 school year at the lower of either (a) the Medicaid Rate or (b) a fair market rate as demonstrated to the district’s Implementation Unit, based on comparable transportation, utilizing a comparable vehicle with comparable accommodations”.

The parent later filed an action in the Southern District of New York seeking reimbursement of the fair market cost of transportation for the ten school days which the student used transportation. The parent sought the actual, fair market, cost of transportation. The district disagreed with the parent’s use of the fair market rate and proposed that the proper rate, which was considerably lower, was the Medicaid rate based on the 2018 Preschool/School Supportive Health Services Program (SSHSP) handbook.

The District Court agreed with the parent at first and ordered the district to reimburse the parent at the fair market rate. After the district asked the District Court to reconsider, the District Court agreed that because the Medicaid rate was lower than the fair market rate, the district must pay the Medicaid rate to meet the requirements of the IHO’s decision.

The parent then requested reconsideration of the District Court’s order on the basis that the Medicaid rates given by the district and applied by the District Court were outdated and inapplicable. The parent requested that the prior award based on the fair market rate be reinstated. The parent argued that if the District Court was going to use the Medicaid rate, then 490

the correct Medicaid rate “should be taken from the 2023 [eMEDNY] Medicaid Transportation Policy Manual”. The Manual states that “the transportation broker is responsible for negotiating reimbursement directly with network transportation providers and that these negotiated rates will supersede the current fee schedule.” From this, the parent asserted that “there is no set Medicaid rate and that the Court should apply the prevailing market rate.” If the Court used the eMEDNY Medicaid rate, the reimbursement rate would be higher than what the parent would receive if the Court used the 2018 SSHSP rate.

The District Court decided that “[t]he correct source of the Medicaid rate is the 2018 SSHSP Medicaid Handbook, which is the source for Medicaid rates for education-related special transportation of students with disabilities in effect at the time of [the student’s] transportation”.

The Court pointed out that according to its terms, the eMEDNY manual applies only “to transportation related to medical appointments and services and not to education-related transportation.”

The District Court also had to decide whether the 2018 SSHSP handbook rates were in effect during the 2021-2022 time period. Because the 2018 handbook was still linked on the SSHSP website and because the parent did not show that any other handbook was in effect during the 2021-2022 time period, the District Court concluded that it could infer that the 2018 handbook was in effect during the 2021-2022 time period.

The District Court decided that the cost of special education transportation services should be based on the SSHSP manual which, the District Court had concluded, provided the basis for Medicaid Rates for education-related special transportation for students with disabilities during the relevant time period and dismissed the parent’s request for reconsideration.

J.L. on behalf of J.P. et al., v. New York City Dep’t of Educ., 17cv7150 (DLC), 2024 WL 2700563 (S.D.N.Y. May 24, 2024) Issue: transportation Dispute: Whether the ADA or the IDEA require the provision of “porter services” 109.

Conclusion: Neither the ADA nor the IDEA requires the provision of “porter services”.

Key Take Away: While a district can provide “porter services”, which involves lifting and carrying a non-ambulatory student with a disability from their non-accessible home’s door to the school bus and vice versa, neither the IDEA nor the ADA requires that students be provided with this type of transportation service.

Reasoning:

Porter services involve the district providing personnel to lift and carry students up and down stairs within their own inaccessible homes.

109

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The students in this case had severe medical needs and had been determined to be students with disabilities. 110 The two parents commenced an action in district court asserting, among other things, violations of the IDEA and the ADA. The matter was referred to a Magistrate Judge for initial consideration.

The parents’ claims sought, among other things, the approval of “porter services”. Regarding such services, the district’s “Office of Pupil Transportation” (OPT) “is responsible for coordinating transportation services for [the district’s] public schools, including specialized transportation for students with disabilities.” Such “services include porter services which entail carrying a student from their apartment door to the school bus and vice versa”. The students “are required to be carried in a wheelchair or to have a parent available to transfer the student into and out of his or her wheelchair”. According to the district’s “Standard Operating Procedures Manual” (SOPM), “Specialized Transportation Assistance Services may be recommended for a non-ambulatory student who resides in a building that has been verified by [the district] to be non-accessible (e.g. no elevator and student lives on other than the 1st floor, or multiple stairs for entry into building with no ramp accessibility), such that the student must be carried up and down the stairs to access the sidewalk.

Notwithstanding the district’s policies and procedures, the Magistrate Judge recommended that the Court find “as a matter of law” that the ADA and the IDEA “do not require [the district] to supply porters to lift and carry students up and down stairs within their own inaccessible apartment buildings”. The parents objected to this and other parts of the Magistrate Judge’s report.

Upon review, the District Court explained that “the relevant statutory definitions concerning transportation do not support a finding that [the district] is required to provide a porter to physically remove a child from or place a child into a wheelchair and physically carry the child up and down stairs”. The Court pointed out that “[t]he ADA defines public school transportation as transportation by school bus vehicles of school children, personnel and equipment to and from a public elementary or secondary school and school-related activities”. 42 U.S.C. 1214(5). The Court also explained that the IDEA requires that districts provide “related services” to students with disabilities and that related services include “transportation”. In relevant part, “transportation is defined to include travel to and from school and between schools and specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability”. 34 CFR 300.34(c)(16) Reviewing the above law and relevant regulations, the Court held that “[i]n sum, neither the ADA nor the IDEA or their implementing regulations, define transportation so expansively that it can be understood to include a human being carrying a disabled student within their building of

110

Both students are now deceased.

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residence”. On this basis, the Court determined that the Magistrate Judge had correctly decided the issue and upheld the report in relevant part.

The parents also argued that “since [the district’s] SOPM recognizes that disabled students may be provided with porter services that include carrying a child up and down stairs, it has become the district’s duty to provide such services”. The Court said here that although the district “may expand its services beyond those required by federal law” “the ADA and the IDEA do not require the district to do so”.

VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) Dispute: Is it appropriate to fund transportation-based ABA services.

Conclusion: The Court upheld the SRO that it was not appropriate to fund transportation-based ABA services.

Basis of the Court’s Decision: In this case, the parent requested “an order of prospective transportation-based ABA services”. “The IHO did not comment on such services”. “The SRO declined to award prospective transportation-based ABA services because [it said] such an award can circumvent the statutory process pursuant to which the CSE is tasked with periodically assessing the student’s needs”. The Court agreed with the SRO “that orders of prospective services are disfavored as a matter of law”. The Court said that “[g]iven that the CSE should have already convened for subsequent school years and that the [district] is currently attempting to secure transportation-based ABA services for [the student] … the Court shall not disturb the reasoned judgment of the SRO”.

VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) Dispute: May a parent be reimbursed for the loss of his/her time providing services as a transportation paraprofessional for the student.

Conclusion: The Court upheld the SRO and concluded that a parent could not be reimbursed for the loss of his/her time providing services as a transportation paraprofessional for the student.

Basis of the Court’s Decision: The parent “argues that the IHO and SRO erred in declining to award her reimbursement for her service as a transportation paraprofessional for [the student].” “The IHO determined that such reimbursement to [the parent] was not available as a remedy under the IDEA”. The SRO agreed with the IHO’s conclusion and found that an award of such reimbursement would constitute money damages, which IHOs and SROs are not authorized to award under the IDEA. The Court first pointed out that since the matter at issue was a matter of law, it need not defer to the SRO’s holding.

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In this case, the parent is requesting “reimbursement … for the loss of her time serving as a transportation paraprofessional”; which is “for her time spent as [the student’s] transition and transportation aide”. With respect to this service, the Court advised that “District courts in this Circuit have generally held that monetary damages, such as those sought by [the parent] are not available under the IDEA”.

Application of the Dep’t of Educ., Appeal No. 22-035 (May 4, 2022) Dispute: Whether the IHO erred in finding that the student’s IEP did not provide for special education transportation.

Conclusion: The State Review Officer (SRO) concluded that the student’s IEP did not sufficiently provide for the student’s special education transportation needs.

Basis of the SRO’s Decision: “The IDEA specifically incudes transportation … in its definition of related services”. Further, “[s]pecialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE”. Additionally, according to a New York State guidance document, in circumstances where a student requires transportation as a related service ... the IEP must include specific transportation recommendations to address each of the student’s needs, as appropriate”.

In this case, “[a]ccordingly to minutes from the January 2019 CSE meeting, the CSE discussed that the student’s behavior on the school bus was poor”. Further, the IEP for that meeting “indicated that the student needed special transportation accommodations or services but did not list what the recommended in this regard.” Additionally, the January 2019 IEP included a checked box indicating that the student was eligible for some kind of special transportation.

“The district school psychologist indicated in her affidavit testimony that the specialized school program recommended by the January 2019 CSE programmatically included door to door transportation and a bus matron on every school bus trip who acted as a supervisor of the bus to ensure the students were properly behaved”.

The January 2019 IEP included a checked “catch-all box to indicate that the student [was] eligible for some kind of special transportation…”

The SRO concluded that the psychologist’s affidavit testimony “goes further than merely explaining or justifying supports listed in the IEP and [was] an impermissible attempt to rehabilitate a defect in the IEP (R.E. v. New York City Dep’t of Educ, 694 F. 3d 167, 186-88 [2d Cir. 2012]). The SRO further advised that “[m]erely checking a catch-all box to indicate that a student is eligible for some kind of special transportation is inadequate to show that the CSE engaged in the requisite planning to address a student’s individual needs”.

The SRO found that “this IEP defect”, together with the district’s use of retrospective testimony “regarding a bilingual paraprofessional to argue that the assigned school would do something different than the terms written into the … IEP which unambiguously stated that monolingual 494

services would be provided instead as interim plan (sic) if the bilingual services called for in the IEP were unavailable” denied the student a FAPE. KB v. Katonah Lewisboro Union Free Sch. Dist., No. 19-3946-cv, 2021 WL 745890 (2d Cir. Feb. 26, 2021) Dispute: The parent asserts that the district’s recommended educational placements denied the student a FAPE. The district disagrees and sets forth that its placements provided the student with a FAPE. Conclusion: The Second Circuit agreed with the SRO and the District Court that the district’s recommended placements for the 2015-16 and 2016-17 school years provided the student with a FAPE. Basis of the SRO’s Decision: With respect to the 2015-16 school year, the student’s IEP recommended that the student attend a private therapeutic day program. The Appeals Court indicated that this program “was capable” of providing the student with small classes and “accommodating” the student’s other educational needs. In response to the parent’s argument that the recommended placement was inappropriate because its staff was not trained in a particular methodology --(here, dialectical behavior therapy [DBT]), the Appeals Court pointed out that the IEP did not require that the student be provided with this methodology but only that the recommended program be supportive of the DBT treatment that the student received from her private psychologist. With respect to this, the Appeals Court found that the record supported the conclusion that the staff of the recommended private school was in fact “capable of supporting” the student’s progress in her DBT treatment by the student’s psychologist. The Appeals Court also found that the record supported the District Court’s conclusion that the student would not have been “mismatched” with her classmates at the recommended private school.

With respect to the 2016-17 school year, the Appeals Court held that the District Court appropriately found that the SRO had properly concluded that the recommended placement offered the student a FAPE. More specifically, the school district offered to place the student in a new DBT-based program at a public high school. The Appeals Court also held that the SRO “did not err” by discounting the recommendation of the student’s private psychologist that an alternative placement would have been “better” for the student. The Appeals Court indicated that what was important is not whether an alternative placement was “better” or “preferable” but whether the student “was likely to make meaningful progress” in the recommended placement. In this case, the Appeals Court held that the student would be “well supported” by the recommended school’s new DBT program.

C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The district asserts that the appropriate placement for the student was a therapeutic day program. The parents assert that a residential placement was appropriate.

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Conclusion: The Court agreed with the SRO that the district’s placement was appropriate.

Basis of the Court’s Decision: The student was classified as a student with an emotional disturbance. For the 2014-15 and 2015-16 school years, the district’s CSE recommended, among other things, a placement consisting of an 8:1+1 special class with the additional benefit of a therapeutic support program (TSP) operated by the regional BOCES and participation in a before and after school intervention services (BASIS) program. The BOCES TSP program included weekly individual and group counseling and its teachers and clinicians had experience in addressing the needs of students with psychiatric disorders. The BASIS program provided “daily family support and strategies at home before and after school and the development of a functional behavioral assessment and a behavior intervention plan.” It was supervised by a school psychologist, was staffed by certified teachers or teaching assistants; with all staff trained in therapeutic intervention. Upon review, the SRO concluded that the student’s IEP for both school years was appropriate, thereby providing the student with a FAPE. The District Court found that the SRO’s decision “reasonably concluded that the CSE’s recommended placement in the BOCES/BASIC program was appropriate for [the student] during the 2014-15 and 2015-16 school years” and therefore provided a FAPE. The Court reviewed the student’s IEPs and concluded that the TSP and BOCES/ BASIS program addressed the student’s emotional needs. The parents argued that the student’s recommended program was not appropriate because it did not include 24/7 coverage within a residential placement, which was recommended by the parents’ experts. The Court concluded that while these persons felt that the student required a residential program, the SRO’s conclusion that a therapeutic day program with before and after school supports provided the student with a FAPE was the type of issue upon which “deference” was owed to “administrative officers”. The Court described the SRO’s “twenty-three single spaced pages” as “well-reasoned,” “quite thorough,” and “careful” and found that the SRO had conducted a “detailed review” of the 2015-16 school year. The Court also pointed out that the recommended program was consistent with the requirement that students be educated in the LRE as it provided the student with extracurricular and particular mainstreaming opportunities. The Court further pointed out that the district court had previously reviewed the student’s program for the 2012-13 school year and further that the parents had not appealed from an IHO decision finding that the recommended program for the 2013-14 school year was appropriate -- and that the only difference between those school years and the years under review in this case was that the student had made “documented improvements”. With respect to that, the Court concluded that because the student had made “significant progress” in her residential program, at this time such a program was less appropriate for the student.

Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that its IEP provided the student with a FAPE. The parents disagree.

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Conclusion: The Second Circuit upheld the determinations of the IHO, SRO and the District Court that the district’s IEP did not provide the student with a FAPE. Basis of the Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It agreed with the IHO and the SRO that the district’s IEP did not provide the student with a FAPE in that the IEP “failed to address how a specialized classroom of 15 students to one teacher would address [the student’s] frequent need for one-on-one attention, even if all students shared a similar level of cognitive ability”. The Court found that the agency’s “factual findings…were reasoned and supported by the record, “that its review was “thorough and careful” and that the determination “falls squarely within the agency’s expertise on educational policy and warrants deference from the judiciary”. Moreover, the Court pointed out that deference is “particularly warranted” where, like here, no additional evidence is presented beyond the administrative record.

PROCEDURAL VIOLATIONS Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) Dispute: Whether the parents’ alleged procedural violations were sufficient to deny the student a FAPE or to deny the parents a meaningful opportunity to participate in the development of the student’s IEP Conclusion: A number of the alleged violations were not violations at all and the balance did not deny the student a FAPE or the parents a meaningful opportunity to participate in the development of the student’s IEP. Basis of the Court’s Decision: The district mistakenly issued a notice scheduling a CSE meeting on January 9, 2018 for the development of the student’s IEP for the 2018-19 school year. The district issued a subsequent notice for a CSE meeting on March 19, 2018. With respect to this, the parents admitted that they received the notice for the March 19, 2018 meeting on February 27, 2018. The Court agreed with the SRO that a March 19, 2018 CSE meeting guaranteed that the student would have an IEP in place at the beginning of the student’s extended school year on July 1, 2018, which is what the law provides.

The parents asserted that the March 19, 2018 CSE meeting was predetermined. According to the Court, “[t]he SRO concluded that the record failed to show that the CSE lacked an open mind with respect to the details of the student’s program”. The Court pointed out that “[t]he meeting lasted between 2.5 to 3 hours” and that the student’s father testified that he had “both attended the meeting and interacted with the CSE during the meeting.” Further, while “the parents disagreed with the results” that did “not mean they were not given the opportunity to participate and raise objections” and nor did “it mean that CSE representatives did not listen to the parents or take their point of view into account”. Additionally, according to the Court “the parents had an advocate at the meeting” and the student’s private school teacher and other providers were present at the meeting by telephone” and which “gave them an opportunity to advocate for their 497

preferred placement”. Reviewing the record, the Court found that to the contrary, it was the parents who lacked an open mind about the process. Regarding this, the Court found that the “totality of the evidence:” showed that “the parents intended to keep [the student] in private school,” and move the student to a new private school no matter “what the CSE finally did”.

On appeal, the parents also argued that a school physician should have been present at the March 2018 CSE meeting. While the parents did have a right to make such a request, the Court’s review of the record found that neither the parents nor anyone from the district had actually requested this. The Court also found it “significant” that the parent did not bring the student’s physician to the meeting or submit any new student medical records at the meeting; suggesting as the IHO and SRO found, that the student’s medical condition was “not in dispute”.

As a consequence of the parents’ receipt of a successful IHO decision on April 27, 2018 relating to the 2017-18 school year, on that day the parents requested that the district schedule a further CSE meeting to address issues raised by that decision and how such might bear on the student’s IEP for the 2018-19 school year; something that was “within their right to ask”. However, the Court concluded that the record established “beyond peradventure that the parents had decided by this time that they had no intention of enrolling [the student] in accordance with any IEP developed by the CSE that did not recommend private school.” The Court also concluded that it was “indisputable” that the request for a further CSE meeting was made in “bad faith” and with “no intention of cooperating with that process”. The Court found that nothing between the date of the parents’ request for a further CSE meeting and the June 11 date that the meeting was ultimately scheduled established or “remotely” suggested that the district significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student and instead “everything” suggested that “the parents significantly impeded the CSE from doing its job”.

With respect to this, according to the Court, the parents’ request for a further CSE meeting included a number of “demands” or “conditions111”. The district was amenable to some but not all of the parent’s requests; which the Court viewed as “nothing more than pretext to set up an argument that the child was denied a FAPE by virtue of alleged procedural defalcations”. The district scheduled a further CSE meeting for May 18, 2018 and then rescheduled that to June 11, 2018, as the prior date was a Friday and not a Monday as requested by the parents, and as the first meeting date had not been scheduled in writing. The district also advised that a school physician would be present at the meeting. The district’s scheduling letter also advised that since This included that (1) “a school physician participate in person”; (2) a group of the student’s teachers and related service providers from the student’s private school receive notice of the meeting; (3) the meeting take place only on a Monday; (4) the meeting take place at the student’s private school and (5) “the CSE consider a private school placement and conduct necessary evaluations for same prior to scheduling the CSE meeting. The parents indicated that they would provide the student’s most recent student progress report but only after the meeting was scheduled.

“The parents also asked for a few proposed dates and times in writing and asked that the meeting not be scheduled by telephone”. “They also asked that the meeting be recorded.”

111

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the IEP needed to be in place by July 1, 2018, which was the beginning of the student’s extended school year, the meeting would not be rescheduled. On June 8, 2018, one business day before the scheduled meeting, the parents’ attorney sent a letter to the district that the meeting could not proceed because -- as provided for by applicable regulation -- the meeting notice did not identify the specific additional parent member, the school physician or the social worker who would participate in the meeting. The parents asked that the meeting be rescheduled. That Saturday, June 9, a bilingual social worker from the district called the parents and encouraged them to attend the Monday meeting. The parents did not and as a consequence the CSE “adjourned without holding a meeting”. The Court agreed with the SRO that the district “engaged in a good faith effort to reconvene the CSE in response to the parents’ request”, that the district was “ready, willing and able to proceed with a new CSE meeting on June 11,” and that the district did not “deny” or “ignore” the parents’ request to reconvene the CSE meeting. The Court further stated its agreement with the SRO that because the parents did not attend the June 11 CSE meeting “there was no purpose in going ahead with that meeting as “the only reason in scheduling that meeting in the first place was to satisfy the parents’ demand for reconsideration of [the student’s] 2018-19 IEP. With respect to all of the parent’s “procedural complaints”, the Court concluded that some were “technical violations of the IDEA regulations” and that some were “made up of whole cloth”.

According to the Court, the “critically important thing” was “that the parents have not identified how any of them adversely impacted either [the student’s] right to a FAPE or their right to participate in the process of formulating [the student’s] IEP”. 112

RELATED SERVICES Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) Issue: Absence of music therapy as a related service from the student’s IEP Dispute: Did the absence of music therapy in the student’s IEP deny the student a FAPE. Conclusion: The Court concluded that the absence of music therapy as a related service in the IEP did not deny the student a FAPE. Key Take Away: The provision of music therapy as a related service is not necessary when the student’s need related to that service is addressed by the IEP in other ways.

Reasoning:

112 The Court also found it “significant” that the IHO who presided over the case for the 2017-18 school year and found in favor of the parents for the IEP relative to that school year was the same IHO who presided over the case for the 2018-19 school year and who concluded that none of the parents’ procedural complaints had merit – either individually or collectively – and also found that “the parents were contriving excuses not to participate in any reconvened meeting”, “had not cooperated” in the student’s educational planning, made “unreasonable demands on the CSE”, “engaged in obstructive efforts”, and “questioned the parents’ credibility”.

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The student has been determined to be eligible for special education as a student with a traumatic brain injury. During the 2021-22 school year, the student turned 12 years old.

The district held a CSE meeting for the student on March 9, 2021 at which an IEP was developed.

Among other things, the IEP recommended that the student attend a district public school. On June 23, 2021, the parents notified the district that they intended to unilaterally place the student at a private school.

The parents filed a due process complaint notice on July 7, 2021 alleging that the student was denied a FAPE. Among other things, the parents alleged that the IEP was substantively deficient as it “lacked music therapy”. Regarding this, and after review, the IHO determined that the district provided the student a FAPE. The parent appealed to the Office of State Review where a State Review Officer agreed with the IHO and affirmed her decision.

The parents commenced an action in federal court on August 15, 2022. For a number of reasons, the Court determined that the district offered the student a FAPE. Regarding music therapy, the Court advised that the SRO’s view was “entitled to considerable deference” and concluded that the absence of a recommendation for music therapy in the IEP did not deny the student a FAPE. The Court pointed out that the school psychologist testified at the impartial hearing “that other related services, including occupational therapy, permitted the IEP to incorporate the benefits of music therapy …” and further testified “that music was incorporated into [the student’s] management needs as well as the curriculum”. The Court also pointed out that the IDEA “does not require a school district to furnish every special service required necessary to maximize each handicapped child’s potential”. See e.g. D.B. v. Ithaca City Sch. Dist., 690 F. App’x 778, 783 (2d Cir. 2017).

J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) Issue: Injunctive relief, pendency placement, and related services Dispute: Did the parents meet the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Conclusion: The Court found that the parents met the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Key Take Away: A court may enforce a student’s right to related services as a result of pendency (the last placement agreed upon by the parent and the district) by ordering that the services in the pendency order be provided.

Reasoning: Plaintiffs are the parents of two students with disabilities. The first student is a 17-year-old boy with Autism. The second student is a 12-year-old boy with CHARGE syndrome.

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The parents allege that for at least the past 6 years the district has failed to provide the students with a FAPE. The parents have filed due process complaint notices on behalf of their children and have “repeatedly prevailed against the district at impartial hearings”. In relevant proceedings, the IHOs have determined that both students are entitled to related services as a result of pendency.

The district did not appeal either of the IHOs’ pendency-related orders.

The Court explained that for a variety of reasons the “uncontested record” shows that the parents “have searched for service providers for their children for years” but have not been successful in having their children receive the panoply of related services that have been ordered in their IEPs. Additionally, the parents have requested that the district “provide” related services for the students but this has not occurred. At the time of the pendency orders regarding the students, the district had still not provided the students with related services that were a part of the relevant pendency orders.

The parents filed suit on November 5, 2023 and requested preliminary injunctive relief on March 18, 2024. As a result of discussions between the parties and communications with the Court, at the time the parents’ motion for injunctive relief came before the court, only some but not all of the ordered related services had still not been provided.

Subsequent to the hearing of the motion, the Court – with two exceptions – granted the parents’ request for preliminary injunctive relief. The Court first pointed out that in order “[t]o obtain a preliminary injunction, a party must demonstrate: (1) that it will be irreparably harmed if an injunction is not granted [ ] (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and [3] a balance of the hardships tipping decidedly in its favor.” The Court further pointed out that a “heightened standard” applies to circumstances “where [1] in injunction is mandatory or [2] the injunction will provide … substantially all the relief sought, and that relief cannot be undone even if a defendant prevails at a trial on the merits”. In such a situation the standard for injunctive relief becomes “[1] a clear or substantial likelihood of success on the merits and [2] a strong showing of irreparable harm, in addition to showing [3] that the preliminary injunction is in the public interest.” In its decision, the Court concluded that the parents’ request for a preliminary injunction met both of these tests.

With respect to the likelihood of success on the merits, as indicated, the Court concluded that, with two exceptions, despite the pendency orders’ requirement that the district “provide” the related services, the district had not done so but only offered “to fund” them. The Court determined that by failing to do this, the district did not provide the students with a FAPE and that “[a]s a result”, the Court said that “the [students] are not receiving the meaningful benefits to which they are entitled”. Therefore, the Court concluded that the parents have demonstrated a likelihood of success on the merits.

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The Court rejected the district’s arguments: first that it had agreed only to fund and not to provide services to the students; and second, that its recent change in an IEP, which the parents’ objected to, relieved it of the obligation to provide relevant related services to one of the students. Regarding the former, the Court disagreed. It said that, with only one exception, the record showed that the district had agreed to provide the services. Regarding the latter, the Court pointed out that the change of an IEP, which the parent disagreed with, did not effect a change in the student’s pendency placement. Regarding the exception, the Court concluded that the pendency order relative to one of the students’ right to speech-language therapy only ordered the district “to fund” and not “to provide” the service.

Regarding irreparable harm, the Court concluded that the parents “have made a strong showing that [the students] are suffering and will continue to suffer irreparable harm absent the Court’s intervention”. The Court said that one of the students had “exhibited significant delays in all areas cognitively, academically, socially, in communication, behaviorally, functionally and physically”.

With respect to the second student, the Court concluded that without access to vision therapy the student had “regressed” and that without access to vision education services, the student “[had] been unable to access the school curriculum”.

The Court rejected the district’s arguments that the injury the students suffered, while “serious”, did not rise to the level of “irreparable injury”. Nor did it make a difference, the Court said, that related services had been denied to the student “for years”. Finally, the district argued that it had “located” relevant therapists; which the Court said was different from actually providing the services which in all but one case had been required by the pendency order. However, the Court determined that the level of irreparable injury had “abated somewhat” regarding one of the students as speech-language therapy by a provider “has been located” and begins “immediately”.

Regarding “[t]he public interest and the balance of hardships”, the Court concluded that the “public interest weigh[ed] in favor of [the students] receiving their mandated services”. The Court said that it was “in the public interest to require the [district\] to comply with the IDEA, with the orders of its own impartial hearing officers, and with its legal obligation to implement pendency”. The Court rejected the district’s argument that “logistical challenges” should preclude its responsibility to provide services. The Court also rejected the district’s arguments that it was “actively working” to implement the services, pointing out that, with the exception above, the services had not been implemented. The Court also pointed out that such had only been “spurred” by the litigation and the parents’ preliminary injunction motion.

Application of the Dep’t of Educ., Appeal No. 23-105 at pp. 6, 21-22, 27 (July 26, 2023) Dispute: Was the duration of the recommended related services appropriate?

Conclusion: The district did not meet its burden of showing that the duration of the recommended related services was appropriate.

Basis of the SRO’s Decision: 502

The student in this case has been found eligible for special education as a student with multiple disabilities. The student’s January 2019 and January 2020 IEPs recommended that the student receive related services, including OT, PT, speech-language therapy, in 30-minute increments.

Upon review, the IHO found that “30-minute sessions did not afford enough time for the delivery of [these] related services given the student’s needs” and “that the district’s … IEPs failed to mandate an adequate amount and frequency of [related] services, “thereby substantively denying the student a FAPE”.

The student’s April 2021 IEP changed the duration of related services to 60-minute sessions. The student’s physical therapist at the private school who was present at the April 2021 CSE meeting testified that “the student required 60-minute sessions of related services. The school psychologist at that meeting testified that “each CSE team views the question of the appropriate duration of related services different” and that generally “it was understood that you do not count transition time to and from a session within whatever time allotment you afford for related services. 113 The SRO pointed out that “[t]he district coordinator who participated in the January 2020 CSE meeting … did not articulate the CSEs’ rationale for the duration of the recommend[ed] sessions”; that the district coordinator testified that this decision “came from the related services providers and what they felt the student needed at that time …”; and that the district coordinator testified that “the CSEs could have recommended longer sessions depending on the needs of the student”.

The SRO also pointed to the fact that the “related services providers who purportedly recommended the 30-minute sessions did not testify and the hearing record [did not include related services reports”.

The SRO also pointed out that “the district did not offer a witness or documentary testimony to explain the January 2019 and January 2020 CSE’s rationales for the recommendations for 30minute related services sessions”. The SRO additionally pointed out that “on appeal, while the district [had broadly asserted that the related services recommended by the CSEs were appropriate, it [did] not specifically articulated a basis for reversing the IHO’s findings that the recommendations for 30-minute sessions of related services were inappropriate”.

The SRO concluded that “there [was] an insufficient basis to reverse the IHO’s finding that the district failed to meet its burden to prove that the January 2019 and January 2020 CSEs recommended related services in appropriate durations” and so denied the student a FAPE.

It is not clear why the SRO relied upon testimony from persons who only attended the April 2021 CSE meeting regarding the appropriateness of the January 2019 and January 2020 IEPs as that would be the use of prospective evidence which is improper. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167,186-88 (2d Cir. 2012).

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Application of the Dep’t of Educ., Appeal No. 23-105 at pp. 19 n.10, 22-24 (July 26, 2023) Dispute: Did the student require music therapy in order to receive a FAPE? Conclusion: The student did not require music therapy in order to receive a FAPE. Basis of the SRO’s Decision: “An IEP must include a statement of the related services recommended for a student based on such student’s specific needs. 8 NYCRR 200.6(c); see 34 CFR 300.320(a)(4). Relatd services is defined by the IDEA as such developmental, corrective, and other supportive services …as may be required to assist a child with a disability to benefit from special education and includes psychological services as well as recreation, including therapeutic recreation. 20 U.S.C. 1401(26)(A) (emphasis added).”

The student receives special education as a student with multiple disabilities. The parent requested that the student receive music therapy at the district’s April 2021 CSE meeting but the CSE did not agree to provide it. The IHO did not address this issue. On appeal, the district argued that the student did not require music therapy in order to receive a FAPE. “The district assert[ed] that the hearing record demonstrates that the student’s classroom instruction and recommended related services addressed the same needs as [the private school] did through its provision of music therapy”. The parent disagreed.

The student’s music therapy teacher at the private school “testified that neurologic music therapy uses specific techniques to work on specific goals and can address motor skills…cognition, and communication skills. She reported that since starting music therapy the student required fewer breaks during therapy sessions and had improved her cognition, comprehension skills, and attention.” She “also reported that music therapy helped regulate the student”. The music therapy teacher also testified that the student had the potential for music therapy to continue to be of assistance. The private school music therapist further testified that “the unique nature of music and the multisensory approach of music provided a [] different way to address the student’s goals but agreed that it was not the only way to work on those skills”.

Though she said, “that music therapy allowed students to progress faster”.

The SRO pointed out that “[t]he district coordinator testified that essentially music therapy isn’t the actual goals. The goals for music therapy for the student were to increase [the student’s] expression or her communication as well as her interpersonal interactions.” In its IEP, “the district determined that [the student’s] needs could be met in other ways without actually providing specific music therapy.” For example, “[t]he district coordinator referred to the April 2021 music therapy goals proposed by [the private school] that addressed the student’s expressive language and pragmatic language skills and testified that the district felt that [these goals] could be met via the management needs and district IEP goals”. Along the same vein and as other examples, the SRO analyzed the district’s IEP as it related to sensory motor, cognition, 504

and speech-language needs and concluded that the IEP addressed these areas through a number of goals.

With respect to the private school testimony that music therapy would allow the student to “progress faster” or make more progress than without and that the private school was providing the student with music therapy that the district school would not be, the SRO advised that “comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE; rather it must be determined whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice and whether the IEP developed by its CSE through the IDEA’s procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits – irrespective of whether the parent’s preferred program was appropriate”.

Here and all in all, the SRO said that the different approaches taken by the district and by the private school “amounts, at most, to a modest pedagogical difference in approach among professionals and does not, without more, support a finding that [the] district denied the student a FAPE”.

Application of the Bd. Of Educ., Appeal No. 22-037 (June 9. 2022) Dispute: Whether the student’s IEP should include 1:1 nursing service.

Conclusion: The SRO upheld the IHO’s decision that the student’s IEP should include 1:1 nursing services.

Basis of the SRO’s Decision: The student in this case has “significant global delays secondary to diagnoses of infantile spasms and Lennox-Gastaut Syndrome”. “The student is nonverbal, requires physical assistance for all gross motor activities, and maximal assists for all activities of daily living (ADLs) in the school environment.” “The student experiences seizures during the school day and requires close supervision.” A June 1, 2021 CSE found that the student was eligible for special education as a student with multiple disabilities. Included among the evaluative information available to the CSE was a September 22, 2020 medical letter. Among other things, the CSE recommended a 12:1+4 special class at a district school “that included a full-time nurse within the classroom. The CSE also recommended, among other things, “three 15-minute daily sessions of individual skilled nursing services”, “skilled nursing services as needed throughout the day” and “a 1:1 aide.”

The student’s due process complaint asserted, among other things “that the student required full-time 1:1 nursing care in school and the recommended three 15-minute daily sessions of skilled nursing services was not safe for the student due to her potentially life-threatening seizures throughout the day”. The parents also alleged “that providing a 1:1 aide who was not a medical professional, would be dangerous for the student absent a full time 1:1 nurse constantly present”. The parents also “asserted that the district’s public school would have had one nurse assigned to a class of 12 medically fragile students, which would have been dangerous for the 505

student who had severe, frequent seizures and a gastrostomy tube”. Additionally, the parents contended that the district school would not allow the student’s Medicaid funded nurse to accompany the student at school.

The district alleged that, among other things, and with respect to the parents’ request for 1:1 nursing “that the CSE discussed the student’s medical needs and the district’s coordinator of health services observed the student and recommended that the student’s medical needs could be met with individual skilled nursing services and a nurse in the classroom throughout the day to observe and monitor the student”. The district also “asserted that the recommended 1:1 aide would meet the student’s needs throughout the school day”.

The IHO “found it was undisputed that the student was medically fragile and required skilled nursing services in order to receive a FAPE.” The IHO also found “that the district failed to address the medical issues outlined in the student’s pediatrician letter dated September 22, 2020”. “The IH0 further found that skilled nursing services 2 times daily in the special class for 15 minutes (for administration of a bolus of water) and a 1:1 aide as needed throughout the day in the 12:1+4 special class with a classroom nurse was less nursing services than directed by the student’s pediatrician”. “The IHO further held that a teaching assistant or paraprofessional could not replace a nurse as neither are medically trained to care for the student”. “Further, the IHO held that the existence of a nurse in the 12:1+4 special class with two nurses nearby and a recommendation for a 1:1 aide was not sufficient to meet the student’s medical needs.”

“Ultimately, the IHO held that the district failed to offer student a FAPE …as the student required a 1:1 nurse”.

“Lastly, the IHO concluded” that “based on her broad equitable powers” among other things, “if she found that the student required a 1:1 nurse, then she had the authority to order the district to provide the student a 1:1 nurse or order the district to permit the student’s Medicaid nurse to attend the district’s recommended program…”. “The IHO determined that the student required nursing services 24 hours a day, seven days a week and therefore, required 1:1 nursing care in school…”. “The IHO additionally found that the student was entitled to attend the district schools with her Medicaid nurse”.

Upon review, the SRO concluded that “[a]lthough the parties seek a substantive determination as to whether the student required 1:1 nursing services, the evidence implicated concerns regarding the process of how the CSE arrived at the decision on that issue at the (sic) and centers more on whether the CSE, when provided with a doctor’s order that recommended a 1:1 nurse throughout the school day for the student, could permissibly rely on the opinions of district’s coordinator of health services in declining to recommend 1:1 nursing for the student throughout the day”.

The SRO pointed out that “it is undisputed that the student is medically fragile” Citing federal guidance, federal and state regulations and caselaw, the SRO pointed out that a medically fragile child who needs the related services of either school health services or school nurse services to 506

receive a FAPE 114 must be provided such services as indicated in the student’s IEP. On the other hand, the detailed plans regarding this ‘should be documented on an individualized health plan (IHP)”.

The SRO cited to state guidance documents that “in determining whether a student needs a 1:1 nurse, a CSE must obtain evaluative information in all areas of the student’s disability or suspected disability; it is expected that this information may include information from a physician such as a written order to the school nurse from a student’s health care provider”. The SRO also referenced guidance that “in providing school nurse services, the school remains responsible for the health and safety of the student and ensuring the care provided to the student is appropriate and done in accordance with healthcare provider orders.” Further, the SRO cited to other state guidance that “if the CSE/CPSE determine that a student’s health needs in accordance with provider orders for treatment can be appropriately met by the school’s building nurse, a shared nurse, a 1:1 aide to monitor and alert the school nurse, then a 1:1 nurse is not necessary.”.

Finally, the SRO cited to state guidance setting forth a list of appropriate factors a CSE must use to determine “whether a student requires the support of a full-day continuous 1:1 nurse”.

As indicated above, the information submitted to the CSE included a letter from the student’s pediatrician. Among other things, the pediatrician’s letter “noted that because of [the student’s] complex needs, the student required a 1:1 nurse in order to carefully monitor her seizure activity and manage her meals/G-tube feeds”. The letter also “expressed that it was of the utmost importance that the student maintain her home nursing care at school indicating that any disruption of her regular nursing services would cause the student’s seizure activity to increase”.

The SRO advised that “[n]o physician – either the student’s or the district’s – participated in the June 2021 CSE meeting”. As indicated above, at its meeting, the June 2021 CSE did not recommend that the student receive 1:1 nursing services but concluded that a combination of, among other things, a 12:1+4 special class which included as one of the four, a full time nurse assigned to the class, a full time 1:1 aide, three 15-minutes daily of individual skilled nursing services, together with skilled nursing services throughout the school day as needed were appropriate to meet the student’s needs.

The SRO clarified that “[m]uch of the evidence regarding the conflict between the district’s position and the parents’ position regarding whether the student required the support of a fulltime continuous 1:1 nurse during the school day appears to stem from a differing perspective between the student’s physician and the district coordinator of health services as to the severity of the student’s seizures”. Regarding this, “[t]he district coordinator of health services confirmed that there were doctors who served as consultants for the school district, but she was not aware if they had been in contact with the student’s family or doctors regarding the student’s condition”. She also testified that “she did not believe that mor3 medical records were

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See 34 CRR 300,3(a), 300.34(c)(13).

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necessary” and also “that additional medical records would be helpful” but again, “not necessary” at the CSE meeting.

The SRO advised that “the problem for the district’s case is that it is relying upon this absence of information to discredit the medical opinion of the student’s treating physician”. While the SRO pointed out that while there was “evidence to support district health coordinator had reason to question the physician’s medical opinion …” the district coordinator of health services also “conceded in her testimony that although the district had consulting physicians of its own, the CSE did not make use of them in this case”. The SRO further concluded that “[w]hile I find that there were ample reasons for the coordinator of health services to take the matter to the district’s consulting physician, who would be in a position to take the discrepancies up with the student’s treating physicians, the record is clear that such communications were not done in this matter”.

Based on the above, the SRO concluded that “it does not appear the June 1, 2021, CSE had sufficient information available to it to determine that the student’s medical needs did not require the support of 1:1 school nursing services throughout the school day. The district coordinator of health services acknowledged that her job entailed providing support services that meet a student’s medical needs as those needs are explained to the CSE by a physician through medical orders.

However, the coordinator disagreed with the student’s physician’s recommendations, leading to the June 2021 CSE not recommending a recommendation for a 1:1 nurse on the June 2021 IEP” and that “the basis for the coordinator’s disagreement with the physician appears to relate to a disagreement as to the student’s medical needs”.

The SRO continued that “…in reviewing the hearing record, a choice must be made between whether to follow the medical directives laid out by the student’s physician or the plan set forth by the coordinator of health service whose medical qualifications are as a registered nurse without any effort by the CSE to consult with a director of school health services in compliance with the Education Law. The SRO continued that “[c]ertainly a district is not always bound by the recommendation or preferences of a student’s physician and may rely on the sound advice of its own physician. The SRO further explained that “[t]he CSE gathered some clinically relevant information that began to call into question the private physician’s viewpoint, but failed to obtain a medical opinion from its own school district physician supporting its position.

The SRO concluded that “[b]ased on the above, the only remaining prudent course based upon the evidence was to follow the medical directives as laid out by the student’s physician”. The SRO reiterated that “the evidence leads to the conclusion that the June 2021 CSE did not have sufficient information from a physician to have departed from the private physician’s medical opinion that a full-time 1:1 nurse was necessarily for solely medical reasons for the student….”.

Regarding what happens next, the SRO held that “1:1 full-time school nurse services must be included in the student’s educational program until the CSE reconvenes and develops a new program for the student”. With respect to this, the SRO concluded that “if the district desires to 508

remove a 1:1 nurse from the student’s educational program, the district may reconvene the CSE with the written opinion or attendance of the proper medical professionals for a determination as to the extent of student’s medical needs.”

With respect to the question of whether the parents could dictate that the student’s Medicaid nurse had to be the nurse who would provide the student’s in school nursing services, the SRO advised that “it is within the district’s authority to determine how to provide the student’s educational programming including which personnel shall provide related services such as the 1:1 nursing”.

Maria Navarro Carrillo and Jose Garzon v. Richard Carranza. et al., No. 20 Civ. 4639 (CM), 2021 WL 4137663 (S.D.N.Y. Sept. 10, 2021) Dispute: Whether the student’s related services should be conducted in 30-minute increments as set out in the IEP or in 60-minute increments as desired by the parents.

Conclusion: The Court upheld the SRO’s conclusion that the student’s related services should be conducted in 30-minute increments.

Basis of the Court’s Decision: The Court concluded that “[i]n light of [the] evidence, the SRO’s conclusion that [the student] did not require 60-minute therapy sessions in order to receive a FAPE appears sound and amply supported”. With respect to this, the Court pointed out that the evidence showed that the student “quickly” became tired during the student’s current 60-minute sessions and that when “fatigued” the student “became frustrated and ceased to cooperate”.

Among other things the Court cited to testimony of the school psychologist that 30-minute sessions of OT in particular were sufficient for [the student] given [the student’s] level of attention and the benefit [the student] would derive without this being an uncomfortable experience for her. Additionally, the witness from the student’s private school testified that the student’s related services were conducted in 60-minute increments “not in order to give [the student] additional therapy but because of the time it took to transition the [student] safely from her wheelchair”. The Court indicated that this being the case, “the additional time requested by the parents was not necessary in order to allow the student to receive sufficient therapeutic attention”. The Court also pointed out that “while the IHO had found that the student had made progress with 60-minute sessions, she noted that there was no independent medical evidence in the record that either documented [the student’s] need for such a long period or indicated that the student would regress with 30 minutes of therapy”. The Court further pointed out that the parents’ argument for 60-minute increments of therapy to address the student’s needs was “undercut” by the fact that it appeared that the student’s private school provided everyone with related services in 60-minute increments without regard to a student’s particular needs including the student here — “who tired easily, became frustrated and required extra motivation during 60-minute sessions”.

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LEAST RESTRICTIVE ENVIRONMENT (LRE) Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) Issue: Least restrictive environment (LRE) Dispute: Whether the CSE recommended the student a FAPE in the LRE. Conclusion: The CSE did not recommend that the student receive a FAPE in the LRE. Key Take Away: For a district to show that it has provided the student a FAPE in the LRE, the district must show that it has included the student in school programs with students without disabilities to the maximum extent appropriate.

Reasoning: The student in this case has received diagnoses of attention-deficit hyperactivity disorder (ADHD) and oppositional defiant disorder and was eligible to receive special education services with a classification of other health-impairment. The student’s IEP for the 2021-22 school year included an ICT program, small group counseling, individual counseling, and individual parent counseling and training.

An ICT program is a class that has students with and without IEP’s. There are two teachers in the ICT classroom – one general education teacher and one special education teacher. See 8 NYCRR 200.6(g).

When demands on the student increased in winter 2021-22, he began engaging in behaviors such as aggression, noncompliance and property destruction. In February, the student was suspended for five days after he engaged in a major behavioral incident. The CSE held a manifestation determination review meeting and determined that “a nexus was found between the student’s behavioral incident and his educational classification…”

The CSE team then met and updated the student’s IEP. It continued to recommend an ICT program, as well as a 1:1 aide, and increased counseling services. When the CSE met in March, it recommended sending out packets to potential out of district placements, with the consent of the student’s parent. When the CSE met in May, it recommended placement in an Eastern Suffolk Board of Cooperative Educational Services (BOCES) 8:1+3 special class located in a public-school building. The student’s recommended related services and accommodations stayed the same from the student’s March 2022 IEP. The parent disagreed with the BOCES placement recommendation.

The parent filed a due process complaint notice alleging that the district failed to provide the student with a FAPE for the 2021-2022 school year. The parent asserted that the district did not offer the student a program in the least restrictive environment (LRE). As part of the parent’s due process complaint notice, the parent requested pendency. Pendency means that a student can 510

stay in the last placement the CSE team agreed to. For this student that would be the ICT classroom as opposed to moving to the BOCES placement.

Between October 2020 and May 2021, the district conducted several FBAs and developed a number of BIPs. None of these were able to fully address the student’s behavioral issues.

However, the student “did exhibit some success in the general education setting during the 202122 school year”.

On appeal to the IHO, the parent continued to argue that the district did not offer a FAPE in the LRE. The parent was worried that the student’s behaviors would increase if the student was placed in the BOCES program. The parent argued that the recommendation of the BOCES 8:1:1+3 placement was not appropriate. Further, the parent pointed out that the 1:1 aide assigned to the student said at the hearing that the BOCES placement “was not right for the student whose behaviors were beginning to improve by this time of the year”. The district argued that “BOCES had interventions such as a crisis response team and special education teachers in the classroom” The IHO determined that the district denied the student a FAPE by failing to recommend a program and services that provided a FAPE in the LRE. The IHO arrived at its conclusion by using the two-pronged test in P. v. Newington” to determine whether the IEP placed a student in the LRE. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546. F. 3d 111, 119-120 (2d Cir. 2008). The test considers (1) whether education in the general education classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not (2) whether the school has mainstreamed the student to the maximum extent appropriate.

With respect to Newington, the IHO held that the district made reasonable efforts to accommodate the child in a regular education classroom. The IHO also determined “that the district proved that the student’s behavior resulted in negative effects to other students in the classroom”. With these factors in mind, “the IHO agreed that the district had met the first prong of the Newington test regarding the need to move the student to a more restrictive setting than a general education classroom”.

The IHO also concluded that the BOCES placement was especially restrictive because of the available BOCES programs with a larger student to teacher ratio. The IHO also pointed out that the students in the recommended BOCES program had substantially different needs. With respect to the district’s argument that the BOCES program had certain interventions, the IHO found that there “was no reason why these kinds of interventions could not have been implemented in an inclusive general education setting”.

“The IHO [also] decided that the district failed to appropriately consider the educational benefits to the student in a regular education classroom as compared to the benefits in a special education class” and that the evidence indicated that the student’s academic levels in the BOCES program were substantially different from the student at issue.

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Based on all of this, the IHO stated that he agreed with the parent that the district did not offer the student a FAPE in the LRE at the May 2022 IEP meeting.

Upon review by the State Review Officer (SRO), the SRO agreed with the outcome of the IHO’s LRE determination for different reasons. He disagreed that an 8:1:1+3 placement was “more restrictive” than a 15:1 or a 12:1 student to staff ratio. The SRO pointed out that “[t]he requirement that students be educated in the [LRE] applies to the type of classroom setting, not the level of additional support a student receives within a placement”. The SRO continued that even though the students in the BOCES program were substantially different from this student, the IHO should have first decided whether the proposed placement was appropriate and then decided whether the students were substantially similar.

The SRO then pointed out that “[t]he second Newington prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate”. The SRO further pointed out that in this case the student would not have any opportunities to access any nondisabled peers at the BOCES placement. The SRO additionally pointed out that the record showed that the student did have some success in the general education setting during the 2021-22 school year. The SRO also pointed out that there was not enough evidence to support the decision to move the student from the general education environment to a BOCES special class without any access to nondisabled peers whatsoever.

The SRO found that in this case after the district determined that general education was not appropriate, it was also required to show whether it included the student in school programs with nondisabled students to the maximum extent appropriate. The district here did not explain how it complied with that second aspect of the Newington test.

The SRO found that the IHO correctly concluded that “the district’s recommended BOCES program failed to offer the student an appropriate placement in the LRE” although he did so using an incorrect legal analysis.

Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) Dispute: Whether the district’s recommended placement violated the IDEA’s LRE requirement.

Conclusion: The Circuit Court agreed with the District Court and the State Review Officer and concluded that the district recommended a program for the student in the LRE. Basis of the Court’s Decision: In this case, the parent “principally argues that [the student’s] IEPs violated the LRE requirement of the IDEA by failing to recommend an in-district placement”. The Circuit Court concluded that the parent’s IDEA claim was “unavailing” in light of the fact that “the IDEA does not require a 512

district to develop an in-district placement for [a single] child and the out-of-district placements offered to [the student] satisfied the LRE requirement”.

The Court pointed out that in addressing IDEA claims, it considered a two-part inquiry -- first procedural and second substantive -- and that whether the proposed placement is the student’s LRE is a part of the IDEA’s substantive requirement. Consistent with this, “in determining the substantive adequacy of the IEP” the Court said that it “must consider whether the state complied with the requirement to educate the child to the maximum extent appropriate with children who are not disabled”.

The Court directed attention to the fact that “entirely without supporting caselaw the parent asserted that the district’s LRE requirement mandates that a district “must analyze whether it could create a placement for a [single] child in the district before recommending an out-of-district placement”.

Consistent with this, the Court disagreed and said that “[t]hough a school district must consider an appropriate continuum of alternative placements and offer the disabled student the least restrictive placement from that continuum that is appropriate for his or her needs” it “need not itself operate all of the different educational programs … but may instead include free public placements at educational programs operated by other entities, including other public agencies or private schools”. This is appropriate in particular circumstances. See, e.g., A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 165 (2d. Cir. 2014). Regarding this case, the Court pointed out that the relevant CSEs “considered several placement options, including placement in Westhampton Beach Middle School, and concluded that placement in an out-of-district special class was most appropriate for [the student’s] needs”.

The parent also argued that the proposed placements in the IEPs “were not the LRE and thus violated the IDEA”. The Court pointed out that “[t]o determine whether a student’s placement is the LRE, [it applies] the test articulated in Mr. and Mrs. P. v. Newington Bd. of Educ, which instructs us to consider (1) whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child” and (2) if not, then whether the school has mainstreamed the child to the maximum extent appropriate.” See 546 F.3d 111, 120 (2d. Cir. 2008).

The Court reviewed the record and concluded that the parent’s claim that the student’s LRE was Westhampton Beach Middle School was not supported by the record. The Court first pointed out that the school “did not have a special class suited to [the student’s] needs and nor did the law require it to create one”. The Court also pointed out that there was no dispute that the student “scored at or below the first percentile in reading comprehension, spelling, listening comprehension, and mathematics; in the low range in single-word reading and in the low average range in pseudo-word decoding; and below the first percentile in speech-language skills”. The Court concluded that “[i]n light of [the student’s] unique needs we agree with the SRO’s well-

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reasoned conclusion that educating [the student] in a regular classroom could not be satisfactorily achieved even with the use of supplemental aids and services”.

With respect to the second part of the Newington test, the Court agreed with the SRO’s conclusion that “the IEPs mainstreamed the student to the to the maximum extent possible”. In this regard, the Court pointed out that “[b]oth IEPs recommended that [the student] be placed in an out-of-district general education school so that he could attend nonacademic activities like extracurricular activities, electives, and lunch, with his general education peers”.

The Court concluded “that [the student’s] IEPs satisfied the IDEA’s LRE requirement”.

Application of a Student with a Disability, Appeal No. 22-127 (Dec. 2022) Dispute: Whether the district’s recommended program was in the student’s LRE. Conclusion: The SRO determined that the district’s LRE analysis should be disregarded.

Basis of the SRO’s Decision: In this case, the student had a “diagnosis of autism and a severe intellectual disability”. Regarding this, student evaluations indicated that the student’s intellectual abilities were at the first percentile and that such might be an “overestimate”. The student’s score on the Vineland-3 comprehensive interview form given to the student’s parent to assess the student’s adaptive functioning also resulted in a score below the first percentile. The student exhibited significant sensory needs and presented with “significant language delays, pervasive difficulties with communication and comprehension”, and accompanying attention and sensory deficits.

Subsequent to preschool, the student was placed in a 6:1:3 special class in a New York State approved non-public school. There, she also received speech-language therapy, OT, PT, and ABA services. Beginning in July 2017, the student was enrolled by her parents at the Rebecca School.

During the 2019-20 school year at the Rebecca School, she was enrolled in an extended school year program in an 8:1+3 special class with OT, speech-language therapy, music therapy, PT and adapted physical education.

The district’s CSE met on December 8, 2020, regarding the student’s placement for the spring of the 2020-21 school year and the fall of the 2021-22 school year. During this meeting, “[t]he CSE determined that the student remained eligible for special education programs and services for a student with autism … “ It “recommended a 12-month extended school year program in an 8:1+1 special class in a district specialized school”. Among other things, it also recommended adaptive physical education, OT, PT and speech-language therapy.

At the December 2020, CSE meeting, the parents requested, among other things, that the student be recommended for an 8:1+3 special class with ABA instruction. Because of the CSE’s recommendation for an 8:1+1 program, the parents advised the district afterwards that they would continue to send the student to the Rebecca School and would seek reimbursement/direct 514

funding for that school. Thereafter, the parents filed a due process complaint notice. The notice “alleged that the district failed to provide the student with a [FAPE] for the 2021-22 school year.

With respect to the issue of the student’s LRE, the district’s special education teacher asserted, among other things, that an 8:1+1 special class was appropriately “restrictive” as a 12:1+1 class was not “restrictive” enough and that a 6:1+1 class was too “restrictive” and that therefore an 8:1+1 class was the student’s LRE. The SRO advised that he “would disregard[]” this testimony as providing support to the district’s recommended 8:1+1 program because LRE considerations relate to “a student’s access to nondisabled peers and not the “the level of additional support a student receives within a placement.

A.D. v. District of Columbia, Civil Action No. 20-cv-2765 (BAH), 2022 683570 (D.D.C. Mar. 8, 2022) Dispute: Whether the recommended placement was in the least restrictive environment.

Conclusion: The Court upheld the hearing officer’s decision that the placement recommended by the student’s IEP was in the least restrictive environment.

Basis of the Court’s Decision: The “IDEA requires that disabled children be educated to the maximum extent appropriate…with children who are not disabled in what … is referred to as a disabled child’s least restrictive environment.”. 20 U.S.C. Section 1412(a)(5)(A). The statute specifically instructs that removal of children with disabilities from the regular educational environment should occur only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. In developing an IEP, the Supreme Court has explained that IDEA’s mandate to place a disabled student in their least restrictive environment must be balanced with the requirement that an IEP be reasonably calculated to enable a child to make progress appropriate in light of their circumstances. Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 999, 1101”.

The student in this case is 15 years old and “has a diagnosis of dyslexia and specific learning disabilities in written expression and mathematics, and testing indicates [the student’s] IQ is within the high average range and that she is able to access the general curriculum for her age group”. At the time of the IEP Team meeting, the student was attending a full-time private school serving exclusively students with disabilities.

The IEP at issue was developed in November 2019. Among other things, it “prescribe[d] twenty hours per week of specialized instruction outside general education; three hours per month of behavioral support services; two hours per month of occupational therapy services; and thirty minutes per month of occupational therapy consultation services, in addition to classroom, accommodations and specified learning goals”. “Under this plan, [the student] would complete all her core curriculum classes within the twenty hours per week allocated for specialized 515

instruction outside general education, while her participation in electives would take place in a general education setting along with non-disabled peers”. The IEP recommended that her program be implemented at her neighborhood school. According to the testimony at the hearing “all special education would occur in a small environment with a 12:2 student to educator ratio and taught by a certified special educator”.

Subsequent to an impartial hearing, the hearing officer upheld the referenced IEP and dismissed the parents’ complaints that the student “be provided with full-time special education outside general education” and that she could not “be educated in a program that included classes, lunch, and break time with non-disabled peers”. There was no dispute regarding the student’s “levels of academic performance, educational goals, classroom aids and accommodations, as well as the amount of behavioral support, occupational therapy, and consultation services” set forth in the IEP. The Court said that “[f]ollowing a meticulous examination of [the student’s] most recent academic performance and psychological assessments, the 2019 IEP, and testimony presented during the [impartial] hearing … the hearing officer concluded that [the student’s] academic deficits would not support a full-time special education placement because, despite her educational difficulties, she was capable of average range achievement scores and above average grades.” Additionally, “the hearing officer found that the record did not support the level of restriction represented by full time special education since [the student’s] stress, anxiety, and inattentiveness were not so severe that she could not progress without a full-time program.” The hearing officer “concluded that the [parents’] request of a full-time special education placement [for the student] would violate IDEAs central tenant that children with disabilities be provided an education to the maximum extent appropriate in the least restrictive environment together with children who are not disabled … for which the 2019 IEP – proposing that electives and other programming be completed within the general curriculum – offered [the student] an appropriate program and placement”.

The Court found that the “[c]hallenged [hearing officer decision] [p]roperly [e]valuated” the November 2019 IEP. The court said that “[c]ontrary to the [parents’] assertions, the challenged [hearing officer’s decision’s] framing of the central issue as whether [the student] must be educated in a small class environment completely separated from general education peers demonstrates keen attention to both the administrative record and IDEA’s maxim that disabled children be educated in the least restrictive environment along with non-disabled peers...”. The Court said that “the challenged [impartial hearing officer decision] contains a full assessment of the 2019 IEP and ample evidence supports the conclusion reached that the IEP satisfied IDEA’s requirements”. The Court said that when “[c]onsidered altogether, the hearing officer concluded that no aspect of [the student’s] psychological profile suggests she cannot progress without a full-time program.” The Court said that based on the hearing officer’s assessment of the record evidence, he “determined that [the student] could continue achieving steady academic progress with the significant amount of small-class and individual support consisting of twenty hours per week of specialized instructions plus additional resources outlined in the 2019 IEP, and that [the parents’] proposed placement of [the student] in a full-time special education program would 516

violate IDEA’s central tenet that disabled student’s be educated in the least restrictive environment along with nondisabled peers”. Such considerations, the Court said “amply support the hearing officer’s finding that the 2019 IEP offered [the student] an appropriate program and placement under IDEA”.

The parents claimed “that the hearing officer misapplied the burden of proof, and presumption of continuity…and that he failed to consider the extent and uniqueness of the [student’s] needs”.

The Court found that with respect to the burden of proof “the hearing officer adequately explained his determination that [the student’s] least restrictive environment was the 20 hours of specialized instruction with related services, classroom aids, supports, and accommodations provided in the 2019 IEP”. With regard to the presumption of continuity, the Court found that “no such presumption was appropriate here” as the district had developed an up-to-date IEP and the “sole task in [the] lawsuit [was] to determine whether [that] IEP provided a FAPE to [the student]”. Regarding the student’s “unique and specific circumstances”, the Court said that the decision of the hearing officer “makes plain that [he] examined the totality of [the student’s] most recent academic and behavioral profile including her distinct psychological challenges, before concluding that her needs could be met without full-time special education placement”.

The Court found that here too “the challenged [hearing officer decision] amply supports the conclusion that the [d]istrict met its burden of proving that the 2019 IEP provided [the student] an appropriate program and placement”.

The parents also assert “that the hearing officer failed to weigh any of the evidence before him”.

The Court disagreed and found “that the hearing officer weighed the witness testimony and other evidence offered by the parties. In particular, the Court found that there was sufficient evidence to support the hearing officer’s conclusions that (1) “the evaluations in the record do not report psychological problems that would prevent [the student] from adjusting to a new and more robust environment” at the recommended school, (2) the student’s “anxiety is not severe enough to prevent her from continuing to make progress with the services prescribed in the 2019 IEP” and (3) that the student “would be able to continue making steady academic progress” with the “significant amount of small-class and individual supports” set forth in the IEP. The Court concluded that the “challenged [hearing officer decision] reflects that the opinions and observations of [the parents’] witnesses were considered” and that “the hearing officer reached reasonable conclusions based on the totality of the record before him, including the testimony of both parties’ witnesses.”

Yonkers (NY) Public Schools, 69 IDELR 18, 116 LRP 46675 (OCR 2016) Subject: City of Yonkers Compliance Review Conclusion: The Office of Civil Rights (OCR) clearly stated that it was the District’s responsibility to evaluate each student individually and to justify why each student could not be educated in a general education environment. In this case the OCR found that the district did not show that it 517

did this. It therefore entered into a resolution agreement regarding the District’s relevant actions in the futures.

Basis of the OCR’s decision: With respect to District policies, practices, and procedures OCR explained that prior to the referral of a student to the CSE for evaluation and placement, the district’s procedures called for the creation of a Pupil Support Team Packet (PSTP). Such a document is to “detail the interventions that the school attempted with students prior to their referral to the CSE”. OCR interviewed staff with respect to the use of the PSTP. Several staff “informed” OCR that the completion of the PSTP was aspirational and not uniformly or widely enforced”. The Director of Special Education advised “that the documentation related to the PSTP should be completed prior to a CSE referral but was not always completed as required”.

Regarding the percentage of students in self-contained settings, for the 2013-14 school year, the District provided “Time Outside of Regular Classroom” (TORC) data for 3,241 of the district’s 4, 099 special education students. A review of this data showed that the median TORC value was 67.5 % and that the mean TORC value was 50.06%. OCR further determined that more than half (52.82%) of the 2013-14 TORC students were outside of the regular education classroom at least half of each school day and that 2013-14 TORC data indicated that 49.15% of the TORC students were outside of the general education classroom, for 75% or more of each school day. With respect to the 2014-15 school year, the District was able to provide TORC values for 3,503 (81.50%) of the district’s special education students. A review of this data indicated that the median TORC value for such students was 75.90% and that the mean TORC value was 51.47%.

Further, more than half of such students (1,890 or 53.95%) were outside of the regular education classroom for at least half of each school day and 1,766 or 50.41% of the TORC students were outside of the regular education classroom for 75% or more of each school day.

The OCR also reviewed Yonkers data with “indicator 5” and “indicator 6” of New York’s “Special Education School District Data Profile”. Indicator 5 measures “the percentage of students with disabilities who were in the general education program for less than 40% of the day or 80% or more of the day”. Indicator 6 measures the percentage of students with disabilities between ages 3-5 who were in a “regular early childhood program and received the majority of special education and related services in the regular early childhood program” or a “separate special education class, school, or residential facility”. OCR found that for every school year reviewed the District did not meet New York State Target Goals 5 and 6.

As it related to file reviews, OCR selected a random sample of 164 students from the 1,521 students who were classified as learning disabled during the 2014-15 school year. The decision to look at learning disabled students was because more than half, (768 or 50.49%) of these students were placed outside of the regular education classroom for at least half of each school day and that 671 or 44.2% were placed outside of the regular education classroom for 75% or more of each school day. Additionally, students with learning disabilities “represented the largest component of the District’s student population classified as students with disabilities”. Of these 164 students, the district initially placed 126. And of this 126, the district placed 53 or 50% in a 518

self-contained setting. As a result of its file review, while it saw some good things in other areas, “OCR determined, however, that for a majority of the files, the documentation contained within the files did not support that the groups of knowledgeable persons had demonstrated that the education of the students in the regular educational environment could not be achieved satisfactorily with the use of supplementary aids and services or, had provided an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary”. “In addition, a majority of files lacked PSPT or referral packet or any other documentation detailing interventions attempted in the regular education environment.”

Moreover, only 60 or 36.59% “of the files reviewed contained documentation purporting to demonstrate that the District attempted to provide educational services in the regular educational environment with the use of supplementary aids or services.

Importantly a review of the IEPs of 162 of the 164 students in the sample contained boilerplate language relating to whether or not the student was being placed in the least restrictive environment. With respect to this, 81 or 50% of the sampled IEPs set forth only in boilerplate fashion that “the student requires special instruction in ... [an environment] with a smaller student-to-teacher ratio and minimal distractions in order to progress in achieving the learning standards”. Regarding its survey, OCR also noted that an additional 47 (29.01%) of the IEPs identified when students would not participate in the general education environment but provided no reasoning for the removal” and 27 or 16.67 percent advised “Not Applicable”. Only 7, or 4.32% of the IEPs contained individual reasoning as to why the student could not be educated in a regular education environment for at least part of the school day. However, even here, those IEPs did not report why the student could not be educated in the regular educational environment even with the use of supplementary aids or services or why the length/percentage of time placed outside of the regular classroom was appropriate or necessary.

With respect to the sampled student files, OCR concluded that “[c]onsistent with the general lack of PSTPs contained within the sampled files and the boilerplate language contained within the IEPs, OCR was generally unable to locate individualized evidence that demonstrated that the education of the sampled students could not be achieved satisfactorily in the regular educational environment with the use of supplementary aids and services, or an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary” (emphasis added). OCR provided 12 case examples “highlighting [its] overall analysis”.

OCR then stated that its “investigation did not reveal information to support that the District’s practices were consistent with the regulation implementing Section 504 at 34 C.F.R 104.34 (and that [s]pecifically, OCR’s file review did not support that the District was consistently placing students with disabilities in the regular educational environment unless the District could demonstrate that the education of the student with a disability the regular environment could not be achieved satisfactorily even with the use of supplementary aids and services or providing

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an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary.’

As a result of its review, OCR entered into a resolution agreement with the City of Yonkers. The resolution agreement required communicating relevant district policies to appropriate staff and the need to follow them; ensuring that the district document its LRE related student decisions; provide relevant training to relevant school personnel relating to placement and LRE determination; reviewing the placement of all students with disabilities in self-contained settings to insure that such students are classified appropriately and are in an appropriate educational setting and, if it is determined that the student is not in an appropriate educational setting immediately conduct a reevaluation and place the student appropriately and determine whether remedial or compensatory services should be provided to the student; and provide data to OCR to demonstrate compliance with Section 504 in future school years.

Application of a Student with a Disability, Appeal No.20-083 (June 26, 2020) Dispute: Parent maintains that for both the 2018-19 and 2019-20 school years, the student’s residential program was in the least restrictive environment. District disagrees.

Conclusion: The SRO concluded that for both the 2018-19 and 2019-20 school years the district failed to show that it satisfied the LRE mandate. Regarding 2018-19, the SRO concluded that the evidence in the hearing record did not support the IHO’s finding that the district offered the student a FAPE. Regarding 2019-20, the SRO found that the district denied the student a FAPE. 2018-19 school year Basis of the SRO’s Decision: The SRO conduced that it was unclear from the hearing record why Green Chimney’s interventions and supports could not be provided in a day program or why the “wraparound” services at that school were “crucial”. The SRO concluded that the CSE’s views that the student continued to need a residential placement “read as a foregone conclusion”.

Regarding the need to proceed cautiously when recommending a residential program, the SRO reported that the student made academic and behavioral progress during the 2015-16 school years in the day program. The SRO also found that while the student was passing his academic subjects in the 2016-17 and 2017-18 school years when he was a residential student, his grades had “slightly decreased”. Further, the parent continued to report that the student “was not exhibiting the same behaviors at home as he exhibited at school”. The SRO concluded that “without more detailed information about why the student needed a residential placement in order to receive educational benefit” the SRO could not find “that the CSEs took the cautious approach required in recommending that the student be removed from his home”. Additionally, the SRO found that in circumstances where the parent had been asking for a day treatment program it would have been “particularly helpful” for the CSE to develop the required “plan and timetable” as to how the student was going to “exit from a residential setting to a less restrictive environment” or a statement as to why the student would not. The SRO pointed out that the hearing record was “silent” with regard to whether the district had created the required plan or 520

statement. The SRO also pointed out that Green Chimneys’ “anticipated discharge date” had been “apparently abandoned without explanation” The SRO concluded that there was “not enough information in the record that a residential placement was required for the student to receive an academic benefit”; that it did “not appear that the district adequately pursued less restrictive environments”, “not [did] the record reflect that the district had [the requited] proposed plan and timetable in place to transition the student to a less restrictive setting”. As a consequence, the SRO concluded that “the district failed to show that it satisfied the LRE mandate for the 2018-19 school year and that the evidence in the hearing record [did] not support the IHO’s finding that the district offered the student a FAPE…”

2019-20 school year Basis of the SRO’s decision: At the May 2019 CSE meeting, it was reported that in response to the parent’s request, the student had been referred to an internal review for discharge to Green Chimneys’ day program but that this was denied because the student “required a higher level of care and support”. During the CSE meeting the parent reported that the student was not taking medication anymore and also was unsure whether the student would attend the Green Chimneys’ summer program. The CSE believed that the student needed “a 12-month therapeutic residential setting” but at that time Green Chimneys advised that it could no longer meet the student’s needs and were concerned about the student’s safety. The CSE recommended conducting a program search “to several therapeutic residential schools within the state”. It did not consider other options at that time. The parent initially did not consent to sending out referrals and therefore none were sent. Ultimately, referrals were made to 11 or 12 schools.

Some requested additional information and only one expressed an interest in accepting the student. However, the parent did not agree to tour that school and the student was rejected.

During this time, the student’s behavior at Green Chimneys and at home were becoming “more severe” with the parent pointing to the school and the school to the parent. The SRO indicated that “adding to the lack of clarity” regarding the reason for the student’s difficulty at Green Chimneys was that “as of the May 2019 CSE meeting the district had not yet completed an FBA”.

Additionally, the May 2019 CSE “failed to set forth or discuss a plan as to when the student could return to a less restrictive setting”. Further, Green Chimneys’ discharge recommendations “became less clear over time”. Compared to earlier quarterly treatment reviews which had indicated a discharge date of September 2018, the September 2018 quarterly review noted an “unknown” date and the November 2018 and February 2019 quarterly reviews included a discharge date of “n/a”.

The SRO concluded that there was “not enough information in the hearing record to show that the residential program was necessary to enable the student to receive an educational benefit for the 2019-20 school year”. Additionally, the SRO found that “the CSE “failed to reflect that it 521

considered less restrictive options for the student or that it had a proposed timetable as to when the student could transition into a less restrictive setting”. The SRO concluded that because of this “the district failed to show that it satisfied the IDEA’s LRE mandate for the 2019-20 school year” and that “therefore the district denied the student a FAPE” for that school year.

Prospective Relief: Application of a Student with A disability, Appeal No. 20083 (June 26, 2020) Dispute: The parent requests an order directing the district to identify and secure an appropriate day program consistent with the recommendations of the psychiatric evaluation and FBA already ordered by the IHO Conclusion: The SRO concluded that prospective relief should not be granted.

Basis of the SRO’s Decision: The SRO concluded that “under certain circumstances” an award of prospective relief “circumvents the statutory process” regarding the CSE’s responsibilities. In this case, the SRO pointed out that the 2019-20 school year had “essentially been almost completed” and that the CSE should have met to develop the student’s program for the 2020-21 school year.

Further, the SRO indicated that the CSE should have before it additional evaluations, including the results of an independent FBA and of an independent psychiatric evaluation ordered by the IHO and not challenged on appeal to the SRO. Since the IHO also ordered that the CSE should meet “within 15 days of receiving the evaluations,” the SRO indicated that the district “should be moving forward with having [the evaluations] completed”. The SRO added that when the CSE reconvenes it will have additional information and that at that time it “should have the first attempt to determine the placement of the student along the continuum of services, assessing the extent to which the student can be educated with nondisabled peers in a public setting before considering more restrictive nonpublic school options” The SRO said that the case was “not one of those few cases” where prospective relief might be appropriate and indicated that one would be “where both the school district and the parent agreed that the child’s unique needs required placement in a private non-approved school and that there were no approved schools that would be appropriate”.

The SRO stressed that the CSE should “reconvene”, “consider the additional evaluations” and also consider “all other non-residential possibilities” before determining whether the student needed to be in a residential program. To do “[a]nything less would eliminate the important statutory purpose of attempting, wherever possible to have disabled student meaningfully access the public school system each year by first attempting placement in a public school”. After it reconvened, reviewed the additional evaluations and reached its recommendations, the SRO ordered the district to provide the parent with “prior written notice” “specifically indicating whether the CSE recommended or refused to recommend” residential services on the student’s IEP and “explaining the basis for the CSE’s recommendation” and “describing the evaluative information relied upon in reaching these determinations” The SRO stressed again that “the CSE must consider whether the student can be successfully placed in a non-residential program”.

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If the parent did not agree with the CSE’s recommendation for the 2020-21 school year, the SRO indicated that the parent “may obtain relief by challenging the district’s determinations regarding that school year at that time”.

MEDIATION

There is no update at this time, check back for later versions for any update.

MOOTNESS Issue: Mootness

Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024)

Dispute: Were the parent’s claims moot Conclusion: The parent’s claims were not moot.

Key Take Away: A claim is not moot just because the CSE convenes multiple times and creates multiple new IEPs after the parent files a due process complaint. In particular, such actions by the district do not relieve the district of potential responsibility for compensatory services if it is shown that the district denied the student a FAPE. Moreover, a case is not moot just because the school year has ended, and the district had developed several subsequent IEPs. To the contrary the issue in these circumstances is whether or not the student successfully sought compensatory services as a result of a denial of a FAPE. Reasoning: The student in this case has received diagnoses of attention-deficit hyperactivity disorder (ADHD) and oppositional defiant disorder and was eligible to receive special education services as a student with an other health-impairment. The student’s IEP for the 2021-2022 school year included small group counseling, individual counseling, and individual parent counseling and training.

When demands on the student increased in winter 2021-22, he began engaging in behaviors such as aggression, noncompliance and property destruction. In February, the student was suspended for five days after he engaged in a major behavioral incident. The CSE held a manifestation determination review meeting and determined that “a nexus was found between the student’s behavioral incident and his educational classification…”

The CSE team then met and updated the student’s IEP with a program of continued ICT services and a 1:1 aide and increased counseling. The district completed an updated FBA and the CSE reconvened to discuss the results of the FBA. The district noted that due to the student’s five-day suspension following the February incident, the FBA data collection was interrupted, and the 523

district was unable to complete the assessment. The CSE met again to review the new FBA that was conducted, and the district developed a revised BIP with a projected beginning service date of March 16, 2022. The CSE convened in May, at which time a new IEP was developed and at which the parent requested an “independent evaluation” (IEE), which was approved.

The parent filed a due process complaint notice on June 2, 2022 alleging that the district denied the student a FAPE for the 2021-22 school year. The parent requested an order directing the CSE to reconvene and create an appropriate IEP based on the results of the IEE and award compensatory services.

The CSE then met multiple times after the school year at issue. In response to these meetings, the district developed new IEPs for the student.

On appeal to the IHO, the district argued thar the parent’s “case should be dismissed as moot because the CSE convened multiple times and created multiple new IEPs after” the parents filed a due process complaint notice. The parent asserted that since the parent was seeking compensatory education as a result of the alleged FAPE violations, the case was not moot. The district also argued that “the case should be dismissed as moot because the school year at issue had ended and the district had developed a number of subsequent IEPs”.

The IHO dismissed some of the parent’s claims but ultimately determined that the district failed to offer the student a [FAPE] for the 2021-22 school year because the district failed to provide counseling, parent counseling and training, and behavior support services. This being the case, the IHO “granted a portion of the parent’s request for compensatory education”.

The IHO rejected the district’s claims that the case was moot. The IHO concluded that in circumstances where compensatory education was at issue and the district denied the student a FAPE, a case would not be moot just because a CSE convened multiple times and created multiple new IEPs. The IHO also concluded that just because the school year at issue had ended and the district had developed a number of subsequent IEPs a case would not be automatically mooted.

On appeal, the State Review Officer (SRO) agreed with the IHO. The SRO found that the IHO had “correctly held that despite the district having convened multiple CSE meetings and creating many IEPS for the student since the parent filed her [due process] complaint, those actions did not relieve the district of being potentially responsible for compensatory services in the event the IHO held that the district denied the student a FAPE”. The SRO also agreed with the IHO’s cited caselaw that the fact that the school year had ended and that the district had developed a number of subsequent IEPS did not moot the parent’s case.

The SRO concluded that the fact that the IHO awarded some of the parent’s request for compensatory education was an example of why the parent’s due process complaint was not moot and, indeed, warranted relief. The SRO further said that because the IHO found that the student was denied a FAPE as a result of the district’s failure to provide him with certain services,

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which affected his overall educational performance during the school year, it was appropriate for the IHO to find that the parent’s claim was not moot.

Issue: mootness

Doherty v. Bice, 2024 WL 2096705, No 23-1217 (2d Cir. May 10, 2024)

Dispute: Were the student’s claims moot.

Conclusion: The student’s claims were moot.

Key Take Away: Analogous to a case involving a college student, in circumstances where a student has graduated, where the “non-contact order” at issue was non disciplinary in nature, had expired, was not shared with another school, and was not a part of the student’s permanent record, the student’s claims relating to that “non-contact order” were moot.

Reasoning: The student in this case has Asperger’s Syndrome and has graduated from the college he had attended. Previously, and as a result of a dispute between the student and other students a “non-contact order” was issued by the school against the student. Thereafter, and in accordance with the ADA, the student sued the school for declaratory and injunctive relief. The district court, among other things, concluded that the claims “were moot because [the student] was no longer a student, and therefore no redress was available”. Additionally, the district court “rejected” the student’s “argument that the orders could affect his future professional and educational prospects since the no-contact orders were not reflected in [the student’s] permanent academic record, were not disciplinary actions, and were not shared with other universities and prospective employers”. The student appealed.

The Second Circuit Court of Appeals upheld the district court, pointing out that the student’s arguments were “conclusory” and that the school’s sworn statements that the “no contact orders [were] not reflected on students’ permanent academic records at the university in the first place, are not shared with prospective employers or as part of records sent on behalf of students’ seeking admission to another college or university”, that the “non-contact orders at issue in this proceeding have expired and are no longer in effect”, and are “not reflected on [the student’s] permanent academic record” were not factually disputed. The Court further pointed out that “[w]hile a declaratory judgment or injunction could have provided relief to [the student] when he was still a student at [the school], now that he has graduated and the non-contact orders have expired, the relief [the student] seeks could provide no legally cognizable benefits”. The appeals court found that “the district court therefore did not err in concluding that [the student’s] claims for injunctive and declaratory relief were moot”. Nor, the court explained, did the student’s claims fit the mootness “exception” that they were “capable of repetition yet evading review” as the repetition would not affect the same complaining party. The Court pointed out here that the student in this case had “graduated from the university and [had] no plans to renew his education 525

there”. The Court also pointed out that the student had not filed suit “in a representative capacity on behalf of similarly situated individuals”.

As indicated, the appeals court upheld the district court that the student’s claims for injunctive and declaratory relief were moot and did not6 satisfy the mootness exception that they were “capable of repetition yet evading review”.

K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) Dispute: The parent sets forth a number of claims that the district denied the student a FAPE. The district asserts that its actions did not deny the student a FAPE. Conclusion: The Court held that the matter was moot.

Basis of the Court’s Decision: The parent “initiated several impartial due process hearings for the school years 2017/18, 2018/19 2019/20 and 2020/21”. The parent subsequently commenced an action in federal court regarding these claims and filed a motion for summary judgement with respect to two of them.

In the first claim, case number 178593, during the impartial hearing, the parent asserted that the district denied the student a FAPE and requested tuition reimbursement from a private school.

The impartial hearing officer found that the district failed to carry its burden of proof that the student was not denied a FAPE, that the parent carried her burden of establishing that the private school placement was appropriate, and that equitable considerations supported the parent’s claim”. The IHO ordered the district to pay the student’s tuition at the private school, to reimburse the parent for monies paid to the private school, and to fund compensatory education.

In the second claim, case number 196238, the parent asserted, among other things, that the district “failed to comprehensively evaluate [the student] for changes to his program”. Among other things, the IHO “ordered that an independent vocational assessment be conducted…”.

In Court and in the motion for summary judgment, the parent requested that the court “order [the district] to complete implementation in these two cases.

The Court found that it “[had] the power to enter an order forcing implementation of an IHO’s decision…” In this case, however, the Court held that the two matters set forth above “appear to be moot”. In particular, with respect to the claim in case number 17859 the parent contended specifically that the district “sent funding authorization to the incorrect person at [the evaluating agency] and that the district forestalled invoice payments to [the evaluator]”. The Court held that the parent “[had] not shown how the funding authorization issue with [the evaluating agency], which appears to be resolved, requires equitable relief. Furter, to the extent that the district “forestalled payments to [the evaluator] and that she still [had] outstanding invoices for service hours”, the Court concluded that the parent “submit[ed] no evidence in support of that 526

allegation”. The Court continued that, “[b]ased on the record before the Court on this motion, there is no relief that the IHO ordered …” with respect to this claim “that [the student and parent] have yet to receive”. Further, the Court held that [s]imilarly, for case number 196238, while the parent asserted “that the independent vocational assessment ordered by the [IHO] has not been funded”, the record “reveal[ed]” that the district had “authorized payment and that the provider had not completed the assessment”. In addition to this, the Court said “that no invoices have been received for the vocational assessment’. On those bases the court concluded that the parent’s claim for equitable relief in that case should be “rejected”.

P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop.

Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022) Dispute: Whether the parents’ claim is moot.

Conclusion: The parents’ claim is moot.

Basis of the Court’s Decision: To the extent that the parents have asked the Court “to reverse [the SRO’s] March 10, 2017, decision reversing [the IHO’s] order that [the student] be placed at [a private school at district expense] and thus to prospectively place the student [at that private school], that claim is moot. In the first place, the Court pointed to the fact that the parents no longer reside in the district or even within New York State and that therefore the district “no longer has any authority over [the student’s] placement”. Secondly, and putting that aside, the Court concluded that were it to reverse the SRO’s decision, it did “not follow that the Court could order placement at [that private school] for 2021-22 without consideration of [the student’s] more recent progress and evaluations, which are not part of the record before the Court.” The Court, it said was “simply without the information needed or the expertise required to determine whether [the student] should be placed at that private school at this juncture of his education”.

This being the case, the Court found that the circumstances “render it impossible for [it] to provide any redress for the claimed injury” and that the claim was therefore moot.

B.D. by Davis v. Dist of Columbia, No. 15-1139 (RJL), 80 IDELR 38 (D. D.C. Dec. 21, 2021) Dispute: Whether the parent’s claims were moot.

Conclusion: The Court concluded that none of the parents’ claims were moot.

Basis of the Court’s Decision: Regarding mootness, the Court explained that “[a] claim is moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party”. “In the IDEA context, where the parents seek compensatory education to make up for past deficiencies in a student’s educational program, the case is not moot merely due to the provision of an appropriate education at a later time.”

First, the district asserts that one of the parents’ claims are moot because the student received numerous IEPs and placements that were satisfactory to the parents from 2016 onward, which dates were subsequent to the dates at issue in the dispute under review.

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The Court pointed out that the remedy sought by the parents in the case under review was compensatory education and, as such, the parents’ claim was not moot but remained a live controversy, notwithstanding that the parents had agreed with the district relative to subsequent IEPs and placements for the student.

Second, the district asserts that mootness should void one of the parents’ claims under review and asserts that “[the parents] improperly seek to obtain in this action the relief that they did not receive” in the remand hearing” in a related case. The Court said that “[w]hale the FAPE denial period in the related case overlaps with the alleged FAPE denial period in this case, that the parents’ claims in that related proceeding center on separate alleged harms from the ones raised here”. Accordingly, the court concluded that “that while not irrelevant to the instant proceeding, [the related case] fails to moot the parents’ present claim” Third, the parents assert in this case that the district’s “administrative due process system” “lack the independence required by statute 115”. The district asserts that this claim is moot because “events have so transpired that a decision in [the parents’] favor will not affect [the parents’] current situation”. The Court held that, assuming that the referenced claim was properly before it, 116 that “it is not difficult to see how the Court could grant effectual relief.” With respect to this, the Court said that as well as being able to “invalidate the hearing officer’s decision”, he “could require changes to ensure independence in future administrative proceedings in the case”. For this reason, the Court found that the relevant count “remain[ed] a live controversy …” and was therefore not moot.

Pendency Placement: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv-02945 (ALC) (S.D.N.Y. Oct. 13, 2020) Dispute: The district argues that the lawsuit is moot and fails to state a claim. The parent asserts that the suit is not moot and should proceed.

Conclusion: The Court held that the lawsuit was moot and failed to state a claim.

The Basis of the Court’s Decision: The student attended the International Academy of Hope (iHOPE) during the 2017-18 school year; the student’s pendency placement. In June 2018, the parent gave the district a 10-day notice that the parent was placing the student at the International Institute for the Brain (iBRAIN) for the 2018-19 school year. In July 2018, the parent provided the district with a due process complaint asserting that it did not provide the student with a FAPE for the 2018-19 school year and requesting that iBRAIN be the student’s pendency placement. Thereafter, an IHO agreed with the parent. The district appealed and an SRO reversed the IHO and concluded that the student’s pendency placement was iHOPE. In April 2019, the parent commenced the subject action. It sought injunctive relief vacating the SRO 115

see 20 U.S.C. 1415(f)(3)(A)(i).

In its review of the merits the Court held that it would not take up the claim as the parents had not raised the issue with the hearing officer and so had not exhausted their administrative remedies.

116

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decision and ordering the district to fund the student’s pendency placement at iBRAIN for the 2018-19 school year until the due process complaint was “finally adjudicated”. The parent additionally sought “equitable relief and damages due to [parent] as a result of the failure or delay in funding pendency placement for [the student].” Finally, the parent sought, among other things, a declaration that district violated the student’s pendency rights.

The Court pointed out that the parent had initially requested relief relating to the 2018-19 school year and that since the inception of the subject suit, the due process proceeding had been resolved in the parent’s favor, the district had not appealed that favorable decision, and had fully funded the student’s placement at iBRAIN for the 2018-19 school year. This being the case, the Court concluded that the parent’s request for injunctive relief was rendered moot. Regarding the parent’s request for declaratory relief, the Court concluded that because the tuition for the 2018-19 school year had been paid, the necessary “controversy of sufficient immediately and reality” was lacking. The Court rejected the parent’s arguments that the claim was not moot. The parent asserted first, that the claim was not moot as she sought “an award of damages for [the district’s] violation of her pendency rights”. Citing Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), the Court concluded that there had been no violation of the student’s pendency rights and that therefore there was nothing the parent could seek damages for. The Court also held that the parent’s attempt to distinguish de Paulino on the basis that pendency had resulted by operation of law had no merit. The parents also argued that the claim was not moot because “unless [the student’s] claims are fully adjudicated [in court, the district] will have evaded accountability for having violated [the student’s] pendency rights, thereby remaining free to duplicate its wrongful conduct towards [the student] in the future”. The Court concluded here that “[e]ven if [the student’s] pendency rights had been violated, there [was] no indication in the record that the situation will recur as to [the student]” and “[n]or does the record indicate that there is any effect of the alleged violation that has not been resolved by the payment of [the student’s] tuition for the 2018-19 school year.”

PENDENCY PLACEMENT J.L. v. New York City Dept. of Educ., No. 24 Civ. 1926, 2024 WL 4882482 (S.D.N.Y. Nov. 25, 2024) Issue: pendency placement Dispute: Did the student have a right to 30-35 hours of ABA as the pendency placement for the July 2020 through January 2021 period.

Conclusion: The District Court concluded that the student had a right to 30-35 hours of ABA as the pendency placement for the period July 2020 through January 2021.

Key Take Away: In determining whether the timing of a due process complaint will affect a student’s pendency placement (which is the student’s placement at the time the due process 529

complaint is filed), the district cannot ignore the effect of a prior pendency order or administration determination.

Reasoning: The student is a minor with autism spectrum disorder. She is protected by the IDEA. If a parent feels that the educational program offered by the district to a student does not offer a free appropriate public education (“FAPE”) the parent may file a due process complaint. The filing of this complaint provides the student with the right to keep in place the existing program during the “pendency” of any proceedings under the IDEA. The pendency placement continues until one of four factors occur: the parties agree to change it; an unappealed hearing officer or court decision mandates a change; an SRO decision that agrees with a child’s parents; or a determination by a court on appeal from an SRO’s decision.

In this case, the parents claim that the student’s pendency placement for the period July 2020 through January 2021 should include 30-35 hours per week of ABA services. The district disagrees and argues that since the due process complaint was filed on February 9, 2021, there is no pendency placement for this period. Thus, the District Court had no “standing” to consider the matter. The District Court pointed out that while this may have been the case, the student’s pendency placement for the July 2020 through January 2021 period was decided by a prior May 19, 2020, administrative order that covered the therapeutic ABA services that the parents were seeking. As far as the district’s standing argument, the District Court pointed out that since the district was not following the student’s pendency placement, the parent had standing to bring the matter to Court.

J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) Issue: Injunctive relief, pendency placement, and related services Dispute: Did the parents meet the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Conclusion: The Court found that the parents met the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Key Take Away: A court may enforce a student’s right to related services as a result of pendency (the last placement agreed upon by the parent and the district) by ordering that the services in the pendency order be provided.

Reasoning: Plaintiffs are the parents of two students with disabilities. The first student is a 17-year-old boy with Autism. The second student is a 12-year-old boy with CHARGE syndrome.

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The parents allege that for at least the past 6 years the district has failed to provide the students with a FAPE. The parents have filed due process complaint notices on behalf of their children and have “repeatedly prevailed against the district at impartial hearings”. In relevant proceedings, the IHOs have determined that both students are entitled to related services as a result of pendency.

The district did not appeal either of the IHOs’ pendency-related orders.

The Court explained that for a variety of reasons the “uncontested record” shows that the parents “have searched for service providers for their children for years” but have not been successful in having their children receive the panoply of related services that have been ordered in their IEPs. Additionally, the parents have requested that the district “provide” related services for the students but this has not occurred. At the time of the pendency orders regarding the students, the district had still not provided the students with related services that were a part of the relevant pendency orders.

The parents filed suit on November 5, 2023 and requested preliminary injunctive relief on March 18, 2024. As a result of discussions between the parties and communications with the Court, at the time the parents’ motion for injunctive relief came before the court, only some but not all of the ordered related services had still not been provided.

Subsequent to the hearing of the motion, the Court – with two exceptions – granted the parents’ request for preliminary injunctive relief. The Court first pointed out that in order “[t]o obtain a preliminary injunction, a party must demonstrate: (1) that it will be irreparably harmed if an injunction is not granted [ ] (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and [3] a balance of the hardships tipping decidedly in its favor.” The Court further pointed out that a “heightened standard” applies to circumstances “where [1] in injunction is mandatory or [2] the injunction will provide … substantially all the relief sought, and that relief cannot be undone even if a defendant prevails at a trial on the merits”. In such a situation the standard for injunctive relief becomes “[1] a clear or substantial likelihood of success on the merits and [2] a strong showing of irreparable harm, in addition to showing [3] that the preliminary injunction is in the public interest.” In its decision, the Court concluded that the parents’ request for a preliminary injunction met both of these tests.

With respect to the likelihood of success on the merits, as indicated, the Court concluded that, with two exceptions, despite the pendency orders’ requirement that the district “provide” the related services, the district had not done so but only offered “to fund” them. The Court determined that by failing to do this, the district did not provide the students with a FAPE and that “[a]s a result”, the Court said that “the [students] are not receiving the meaningful benefits to which they are entitled”. Therefore, the Court concluded that the parents have demonstrated a likelihood of success on the merits.

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The Court rejected the district’s arguments: first that it had agreed only to fund and not to provide services to the students; and second, that its recent change in an IEP, which the parents’ objected to, relieved it of the obligation to provide relevant related services to one of the students. Regarding the former, the Court disagreed. It said that, with only one exception, the record showed that the district had agreed to provide the services. Regarding the latter, the Court pointed out that the change of an IEP, which the parent disagreed with, did not effect a change in the student’s pendency placement. Regarding the exception, the Court concluded that the pendency order relative to one of the students’ right to speech-language therapy only ordered the district “to fund” and not “to provide” the service.

Regarding irreparable harm, the Court concluded that the parents “have made a strong showing that [the students] are suffering and will continue to suffer irreparable harm absent the Court’s intervention”. The Court said that one of the students had “exhibited significant delays in all areas cognitively, academically, socially, in communication, behaviorally, functionally and physically”.

With respect to the second student, the Court concluded that without access to vision therapy the student had “regressed” and that without access to vision education services, the student “[had] been unable to access the school curriculum”.

The Court rejected the district’s arguments that the injury the students suffered, while “serious”, did not rise to the level of “irreparable injury”. Nor did it make a difference, the Court said, that related services had been denied to the student “for years”. Finally, the district argued that it had “located” relevant therapists; which the Court said was different from actually providing the services which in all but one case had been required by the pendency order. However, the Court determined that the level of irreparable injury had “abated somewhat” regarding one of the students as speech-language therapy by a provider “has been located” and begins “immediately”.

Regarding “[t]he public interest and the balance of hardships”, the Court concluded that the “public interest weigh[ed] in favor of [the students] receiving their mandated services”. The Court said that it was “in the public interest to require the [district\] to comply with the IDEA, with the orders of its own impartial hearing officers, and with its legal obligation to implement pendency”. The Court rejected the district’s argument that “logistical challenges” should preclude its responsibility to provide services. The Court also rejected the district’s arguments that it was “actively working” to implement the services, pointing out that, with the exception above, the services had not been implemented. The Court also pointed out that such had only been “spurred” by the litigation and the parents’ preliminary injunction motion.

L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) Dispute: Whether, in circumstances where the district is unable to identify a specific placement agreed upon in the IEP, the parents file a due process complaint notice on the basis thereof, and where the parent enrolls the student in an appropriate private placement, the district may be 532

enjoined under the principles of pendency and IDEA’s provisions for equitable relief to continue to make payments to the private school pending the district’s satisfaction with the placement set forth in the IEP or during the pendency of the due process complaint process.

Conclusion: The Court concluded that, in circumstances where the district is unable to identify a specific placement agreed upon in the IEP, the parents file a due process complaint notice on the basis thereof, and where the parent enrolls the student in an appropriate private placement, the district may be enjoined under the principles of pendency and IDEA’s provisions for equitable relief to continue to make payments to the private school pending the district’s satisfaction with the placement set forth in the IEP or during the pendency of the due process complaint process.

Basis of the Court’s Decision: The student is classified as a student with an emotional disturbance and has received special education services.

The district’s CSE met on June 15, 2023. At that time, all parties agreed that the student’s appropriate placement was a 12-month placement in a residential non-public school. However, the CSE was unable to find such a placement for the child. It therefore recommended that the student attend a public high school that served both students with disabilities and students without disabilities and which was not a residential school. The parent’s disagreed with this placement and unilaterally placed the student in a non-public residential school.

The parents filed a due process complaint notice asserting that the district had failed to find an appropriate placement for the student. Under the circumstances, the parents asserted that the principles of pendency placement and injunctive relief under the IDEA assured the student a right to attend the private school he was attending on a monthly basis during the pendency of the due process complaint process or until the district provided the student with a “suitable” residential placement as set forth in his IEP. Pending “before the Court [was] the [p]laintiffs [request for injunctive relief] to order the district to fund [the student’s] placement at [the private school] on a monthly basis during the pendency of the due process proceedings or until [the district] provides [the student] with another suitable residential placement as specified in [the student’s] IEP”.

Putting aside pendency, the Court advised that to secure injunctive relief the “[p]laintiffs must show (1) a likelihood of success on the merits, (2) that the plaintiffs are likely to suffer irreparable injury in the absence of an injunction, (3) that the balance of hardships tips in the plaintiffs’ favor, and (4) that the public interest would not be disserved by the issuance of the injunction”.

With respect to the parents’ initial assertion that the student had a right to continue to attend his private residential placement on a monthly basis as a pendency placement, the district claimed that the claim was barred by the doctrine of the failure to exhaust administrative remedies and cited to Second Circuit caselaw at Ventura de Paulino, 959 F.3d 519, 530 (2d Cir 2020).

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The Court disagreed and explained that “when an action alleges a violation of the stay-put provision, such action falls within one, if not more, of the enumerated exceptions to the IDEA’s exhaustion requirement. See de Paulino, 959 F.3d at 531. The Court therefore rejected the district’s argument.

With respect to the parent’s claim that the stay-put provision at 20 U.S.C. Section 1415(j) provides authority for the Court to order the requested injunctive relief, the Court explained that the stay-put “provision operates as an injunction that keeps the student in the then current educational placement” and further, that the “then current educational placement … typically refers to the child’s last agreed-upon program before the parent requested a due process hearing”. With this in mind, the Court found that the student’s pendency placement was “the June 15, 2023 IEP’s recommendation of a non-public residential placement …” the placement which both the parents and the district had agreed was appropriate for the student.

The district asserted that the Second Circuit’s de Paulino decision “foreclose[d]” the student’s ability to attend the private residential school. The Court disagreed. It first explained that the Second Circuit’s holding in de Paulino was that the parent and the district cannot agree “that the student’s educational program would be provided by one school”, that the parent cannot then “determine that the child’s pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school’s services on a pendency basis.” This was not the case here the Court said. And therefore, de Paulino does not strictly apply. However, and importantly, the Court pointed to dicta in de Paulino that specifically stated that the Second Circuit there “was not considering any question presented where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child”. de Paulino, 959 F.3d at 534 n.65. The Court further pointed out that the Second Circuit in de Paulino “noted that under certain extraordinary circumstances not presented in [that case], a parent may seek injunctive relief to modify a student’s placement pursuant to [IDEA’s] equitable authority provided in 20 U.S.C. 1415(i)(2)(B)(iii)” and there cited to a case that “involved a situation in which the pendency placement was no longer available and the school district had failed to propose an alternative, equivalent placement”. See Wagner v. Bd. of Educ. of Montgomery Cty., 335 F.3d 297, 302-03 (4th Cir. 2003).

The Court then considered the extent to which the case at hand involved the “extraordinary circumstances” referenced in de Paulino and “whether a preliminary injunction [could] be issued in this case based on the [IDEA’s] equitable remedial powers at 20 U.S.C. Section 1415(i)(2)(B)(iii)” and under the criteria for injunctive relief set out above.

Upon review, the Court decided that the case fell “precisely into the category of extraordinary cases the Second Circuit identified in Ventura de Paulino as appropriate for injunctive relief…”.

As indicated above, it pointed to the fact that “[n]one of the residential program schools that would have served as [the student’s] pendency placement [was] available and the school district I [had] failed to propose an alternative equivalent placement”. The Court also pointed out that 534

based on the information before it, the student’s private residential school would “serve the student in accordance with [his] IEP” and that the district “had previously been ordered to fund [the private school] as a residential educational placement pursuant to the IDEA”. This being said, the Court concluded that the parents “have shown a likelihood of success on the merits”.

The Court also concluded that “in the absence of a preliminary injunction [p]laintiffs will suffer actual and imminent harm”. Regarding this, the Court pointed to the fact that the family’s income precluded their continuing ability to pay for the private school and that the private school had advised the parents that unless payment was received immediately or an injunction issued, the student would not be able to remain.

The Court also found that the “balance of the equities” favored the plaintiffs “and that a preliminary injunction would serve the public interest”. Regarding this, the Court pointed to the facts that the district has “failed to provide a pendency placement that satisfies [the student’s] IEP, has offered the [p]laintiffs only a pendency placement that violates [the student’s] IEP and has given no indication of when it will offer a pendency placement that satisfies [the student’s] IEP. With all of the above in mind, the Court granted plaintiff’s motion for a temporary restraining order and preliminary injunction.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Did the SRO have the authority to determine whether pendency attaches as a result of a unilateral change by a parent from one private school to another in circumstances where the parent asserts that the initial private school “providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child”.

Conclusion: The SRO concluded that he did not have the authority to make such a decision in such cases and that this authority was reserved to the District Court.

Basis of the SRO’s Decision: As a result of an un-appealed IHO decision finding that the district did not offer the student a FAPE and that the student’s placement at a private school was appropriate, that private school became the student’s pendency placement.

The parent now argues that that private school “became so inappropriate for the student it became functionally unavailable, and that, as a result, the district was required to identify some other pendency placement for the student”. Because the district did not do so, the parent argues that the parent had a right to move the student to a different private school and that this second private school became the student’s pendency placement.

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The SRO characterized the dispute between the parties as “whether the district was required to locate a school to implement the pendency program after the parent[] had already unilaterally placed the student at [the second private school]”. The SRO explained that the Second Circuit had already “directly addressed” the question as that Court “found that the district had the authority to determine how to provide the most-recently-agreed-upon educational program.”

See Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 534 (2d Cir. 2020). The Court explained that “what the parent cannot do is determine that the child’s pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay put provision to force the school district to pay for the new school’s services on a pendency basis”. Id. The SRO explained that the parent was trying to do “exactly” what the Second Circuit had indicated that it could not – enroll[] the student at the second private school and thereafter invoke[] the stay-put provision to force the district to pay for the student’s placement at [the second school] on a pendency basis”.

The parent argued that its actions fell under footnote 65 of the de Paulino case. In that footnote, among other things, the Second Circuit noted that “[w]e do not consider here, much less resolve, any question presented where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child”.

Id. The SRO pointed out that “this [was] not the first time that counsel for the parent has raised similar arguments at this level, and counsel for the parents have been advised on previous occasions that to the extent that the parents cite to footnote 65 in [de Paulino] and argue that a parent may exercise self-help and seek an injunction to modify the student’s pendency placement, the parent should have pursued this argument in District Court because an administrative hearing officer does not have authority to issue a traditional injunction like a District Court to order a change in a student’s stay-put placement”. With respect to this, the SRO also pointed out that “the parent[] [has] not pointed to any cases in District Court where they have had any success with this argument”. In fact, the SRO further said that “at least one District Court decision [had] advised counsel for the parent[] that if their client[‘s] issue is that no timely pendency determination has been made, then they can move to obtain such relief. What they cannot do, that Court reiterated under de Paulino, is to “unilaterally alter students’ enrollment and then claim pendency funding on that basis”. See Araujo v. New York City Dep’t of Educ., 2020 WL 5701828, at *4 (S.D.N.Y. Sept. 24, 2020).

The SRO said that it was unable to “delv[e] into the parent’s arguments as to whether placement [at the first private school] was available to the student to implement pendency, the parent cannot obtain the relief he is seeking – district funding the cost of the student’s attendance at [the second private school] on a pendency basis”.

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The SRO said that “[s]hould the parent continue to seek funding for the student’s attendance at [the second private school] for the pendency of this proceeding, the parent may seek a preliminary injunction requesting a change in the student’s educational placement, an injunction for which the parent bears the burden of demonstrating entitlement to such relief under the standards generally governing requests for preliminary injunctive relief”. See Wagner v. Bd. of Educ. of Montgomery Cty, 335 F.3d 297, 302-03 (4th Cir. 2003) 117.

Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) Dispute: Whether the stay-put provision of the IDEA entitles parents to an automatic injunction directing a district to fund their children’s pendency placements.

Conclusion: The Second Circuit upheld the District Court and determined that in the circumstances of this case, the stay-put provision of the IDEA did not entitle parents to an automatic injunction directing a district to fund their children’s pendency placements.

Basis of the Second Circuit Court’s Decision: This case involves five students who have pendency orders in place to attend a private school.

The parents have sought a preliminary injunction or an enforcement of pendency as well as an order requiring the district to “immediately implement each [s]tudent’s [p]endency [o]rder, by funding the [s]tudent’s tuitions and related services…for the 2022-23 extended school year”. “[T]he [D]istrict [C]ourt denied [the parents’] request for a preliminary injunction…”. In the first place, the District Court reasoned that the parents “were unable to show irreparable harm arising from the [district’s] alleged failure to pay”. Second, the District Court “rejected [the parents’] argument that the IDEA’s stay-put provision, 20 U.S.C. 1415j, entitles them to an automatic preliminary injunction, reasoning that the provision pertains to educational placement, not funding”. The Second Circuit affirmed the judgement of the District Court.

With respect to the second argument, about the stay-put provision itself, the Second Circuit explained that “the IDEA’s stay-put provision entitles children with disabilities to remain in their then-current educational placement at public expense during the pendency of any proceedings.

This provision seeks to maintain the educational status quo while the parties’ dispute is being resolved”. The Second Circuit went on to say that it has “characterized [the IDEA’s pendency provision] as in effect an automatic preliminary injunction, given that it substitutes an absolute rule in favor of the status quo – that is, the maintenance of a student’s then-current educational placement – for the standard preliminary injunction analysis …”

The parents “contend that [because of pendency], there is no requirement to show irreparable harm in order to obtain an order requiring the [district] to immediately fund the educational In de Paulino, the Second Circuit cited to Wagner for the proposition that “under certain extraordinary circumstances not presented here, a parent may seek injunctive relief to modify a student’s placement pursuant to the equitable authority provided in 20 U.S.C. 1415(i)(2)(B)(iii)…”. See De Paulino, 959 F.3d at 534; See also Wagner, 335 F.3d at 302-03.

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placements for the 2022-23 school year”. The Second Circuit said that just because the district is “obligated to fund their children’s educational placement for the duration of the proceedings, that does not mean that [the pendency provision] requires the [district] to automatically fasttrack funding for the educational placements”. The Second Circuit agreed with prior precedent (see Abrams v. Porter, No. 20-3899-cv, 2021 WL 5829762 (2d Cir. Dec. 9, 2021) “that the IDEA’s stay-put provision does not create an entitlement to immediate payment or reimbursement.

Parents or guardians may still be able to obtain such relief if they establish that a delay or failure to pay has jeopardized their child’s educational placement. But, absent such a showing, the [district] is not obligated to circumvent its ordinary payment procedures”. The Court said here that “this comports with the practical realities of bureaucratic administration”. Relative to this, given the numbers of children and the amount of monies involved, the Second Circuit said that “[a]ny agency will need some amount of time to process and pay submitted invoices. If such pendency order entitled parents or guardians to immediate payment, school districts would be unable to implement basic budgetary oversight measures, such as requiring receipts before reimbursement”.

With regard to traditional injunctive relief, the District Court “reasoned” that the parents were not able to show irreparable harm. Regarding this, in order “[t]o obtain a preliminary injunction, [under the traditional standard] plaintiffs must show (1) a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiffs’ favor, (2) that they are likely to suffer irreparable injury in the absence of an injunction, (3) that the balance of hardships tips in their favor, and (4) that the public interest would not be disserved by the issuance of a preliminary injunction”. Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010).

The Second Circuit pointed out that here “[the parents] effectively conceded that they would not suffer irreparable harm in their motion for expedited briefing”. This because the private school “has allowed the [s]tudents to remain in the school”. Further, “[i]nstead of arguing that their children’s pendency placements are at risk, [the parents] allege that they and their children have suffered irreparable harm in the form of a violation of the procedural rights afforded to them under the stay-put provision”. However, the Court said that the stay-put provision “does not create a procedural right to immediate payment, at least not absent a showing that a child’s placement will be put at risk” – something that is not at issue here.

Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) Dispute: Whether the parents’ pendency claims relating to injunctive relief were ripe for review.

Conclusion: Except for one limited exception, the Second Circuit held that the parents’ claims for injunctive relief were not ripe for review.

Basis of the Second Circuit Court’s Decision: This case involves five students who have pendency orders in place to attend a private school.

The parents have sought a preliminary injunction and an order requiring the district to 538

“immediately implement each [s]tudent’s [p]endency [o]rder, by funding the [s]tudent’s tuitions and related services…for the 2022-23 extended school year”.

The Second Circuit first considered whether the claims were “ripe for review”. Except for certain claims relating to transportation, the Second Circuit held that they were not ripe.

The Second Circuit pointed out that the ripeness doctrine “is a constitutional prerequisite to exercise of jurisdiction by federal courts” The Second Circuit explained that “[f]or a cause of action to be ripe, and therefore justiciable, it must present a real, substantial controversy, not a mere hypothetical question … A claim is not ripe if it depends upon contingent future events that may not occur as anticipated, or indeed may not occur at all”.

The parents’ “alleged grievance is the [district’s] failure to fund each respective [s]tudent’s placement at [the private school] for which [the parents] seek an injunctive order requiring the [district] to immediately fund their children’s placements and damages for the [district’s] delay or failure to do so. However, the [district] has already made tuition payments for all five students through at least March 2023. Although [the parents] seek payment for the remainder of the school year, they are not yet entitled to that relief.”

Because this is a pendency matter, the Second Circuit said that “for us to conclude that the [district] has a legal obligation to fund the children’s placement for a given period, we would first need to know whether the underlying proceedings remain pending during that period. Because we cannot now ascertain the future, we cannot assume that the [district’s] legal obligation will continue through the remainder of the school year. [The parents’] claims are therefore unripe; their entitlement to tuition for the remainder of the school year, [because it depends upon pendency,] depends upon contingent future events that may not occur as anticipated, or indeed may not occur at all. The [district] must first withhold payments that have actually accrued before [the parents] can seek those payments in court.”

However, the Second Circuit said that “the same cannot be said with respect to transportation costs”. Relative to this, the parents asserted that they have “sent invoices for transportation costs incurred in February to the [district] and were still awaiting payment”. The Second Circuit pointed out that “[b]ecause this claim for transportation costs depends on an allegedly unmet existing obligation rather than future events that may not occur as anticipated, or indeed may not occur at all, the claim is ripe for review”.

Application of a Student with a Disability, Appeal No. 23-022 (Mar. 17, 2023) Dispute: Should compensatory education be awarded on the basis of a lapse of pendency services.

Conclusion: The SRO vacated the IHO’s decision and concluded that based on the failure of the district to provide pendency services the student should be awarded compensatory services.

Basis of the SRO’s Decision: 539

In this case, among other things, the parties agreed that the student’s pendency placement for the summer portion of an extended school year program included PT, speech-language therapy, and OT as related services. Such summer services, however, were never delivered as the district was not able to find related service personnel to provide the required services. Therefore, the district informed the parent that “make-up” services would be provided over the course of the regular school year. Regarding this, the IHO read the terms of the pendency agreement to provide for this and that to do under in such circumstances would not be violated. Regarding compensatory services, the IHO found “that it was unnecessary to award compensatory education on top of the make-up related services provided to the student …”.

The SRO did not agree. He construed the pendency agreement to allow for rescheduled and make up sessions “when a related service provider may have scheduled a session to work with a student but that due to illness or other similar reason the session might have to be rescheduled and made up”. In this case, the SRO pointed out that “no provider schedules were established for the entire summer because the district was unsuccessful in its efforts to have providers at all despite the parties’ agreement that 12-month services were required”. The SRO said that “there were no scheduled sessions, no cancellations, and no makeups scheduled and remediation of the lost related services did not begin until after the regular school year commenced … “ Consistent with this, the SRO found “that the placement as implemented without the provision of the related services constitute[d] a failure to maintain the student’s educational placement under pendency, notwithstanding the district’s intentions to provide make-up related services at a later time during the regular 10-month portion of the school year.” As a consequence, the SRO reversed the IHO and vacated the decision in that regard.

Regarding compensatory services, The SRO cited to Second Circuit for the proposition that “where a district fails to implement a student’s pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy”. See Doe v. East Lyme Bd. of Educ., 790 F3d 440, 456 (2d Cir. 2015); See also Student X v. New York City Dep’t of Educ., 07-CV-2316 (NGG)(RER), 2008 WL 4890440, *25-*26 (E.D.N.Y. Oct. 30, 2008). The SRO also cited to the Second Circuit for the proposition that “[i]n calculating a compensatory education award for a lapse in pendency…the purpose of the stay put provision to guarantee the same general educational program should be taken into account” 118 Doe v. East Lyme Bd. of Educ., 962 F.3d 649, 665-66 (2d Cir. 2020). In this case, the SRO said that “the compensatory education award should include the compensatory pendency services owed or [if the student’s needs have changed] analogous educational services appropriate to the student’s needs”. See East Lyme 790 F.3d at 456-57. Reflecting the fact that the parties had agreed in the pendency agreement “that cancelled related service sessions could be made up at a later date”, the SRO saw “little reason not to order similar relief for services that were never scheduled in the first place due to the failure to locate providers”.

In this case, since the pendency agreement in relevant part provided for related services, “the same general educational program” here would also be related services.

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With all of this being the case, the SRO “order[ed] the district to provide compensatory pendency services on an hour for hour basis to remedy the number and type of missed sessions required pursuant to the pendency agreement” and ordered the district “to provide the compensatory services to the extent that it has not already done so” and that to be “completed within one year of the date of [the SRO’s] decision”.

In re student with a disability, Appeal No. 21-075, (June 24, 2021) Dispute: What was the student’s pendency placement.

Conclusion: The IHO agreed with the parent’s position that the Beekman School was the student’s pendency placement.

Basis of the IHO’s Decision: The concept of pendency requires that a student remain in his or her “then current educational placement”. Citing Second Circuit case law, the IHO described the phrase “then current educational placement” 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”. The IHO determined that the “last agreed upon implemented IEP [was] contested,” that no “IEP demonstrates as the last agreed upon implemented IEP for the purposes of pendency, “and moved to a discussion of “the current educational placement” being defined as the IEP that was “actually functioning at the time when the due process proceeding commenced”. The IHO referenced Ventura de Paulino v. New York City Dep’t of Educ, 959 F.3d 519 (2d Cir. 2020) for the proposition that “it is up to the school district, not the parent to decide how to provide (the) educational program until the IEP dispute is resolved, so long as the decision is made in good faith”. With respect to this, the IHO found that it was “significant” that “when the parent called the school principal to schedule a meeting and to review the student’s IEP, the principal told the parent that she was going on vacation and that the parent should call at the beginning of September. When the parent called in September, the principal informed the parent that the DOE had never sent Student’s transfer paperwork, and, as a result, her seat was no longer available. As a result, the student was again without a school placement”. The IHO found that because of this, the district’s actions were “absent [the required] showing of good faith”. The IHO held that as a consequence the parent had demonstrated that “the operative placement actually functioning at the time the due process proceeding was commenced was at the Beekman School where the student had attended for consecutive years, since 2019” and that because of this, that school was the student’s pendency placement.

Application of a Child with a Disability, Appeal No, 20-195 at pp. 8-11 Dispute: Whether the IHO correctly reached and then determined that the student’s pendency placement was The Keswell School (Keswell).

Conclusion: The IHO incorrectly proceeded to discussing the student’s pendency placement and, in any event, erred in its determination regarding that.

541

Basis of the SRO’s Decision: Regarding whether or not the IHO correctly proceeded to address pendency during the hearing, the SRO pointed out that “neither [the district nor the parents] raised the question of pendency on the record during the impartial hearing and there [was] no interim decision or agreement on pendency in the hearing record”. Regarding that, the SRO advised that “[i]f there is dispute as to the status of the student during the impartial hearing (i.e., pendency), this issue should be raised immediately with the IHO” and that “absent a dispute, the IHO should not sua sponte make determinations about the student’s pendency, particularly without giving the parties notice of his intent [to] do so or receiving evidence on the issue”.

Moreover, the SRO concluded that “the IHO’s conclusion that Keswell was they student’s pendency placement [was] factually and legally flawed”. In this regard, the SRO wrote that “[t]he parents agreed that they enrolled the student at their own financial risk and that the student was not entitled to attend Keswell at district expense pursuant to pendency”. The IHO further concluded that “[t]he parties are in agreement that the February 2015 [IEP] was the student’s last agreed upon placement and there is no evidence in the hearing record of an agreement between the parties regarding the student’s placement at Keswell or an unappealed IHO decision ordering the district to fund the student’s tuition at Keswell during another school year”. As a consequence, the SRO concluded that there was “no basis for a finding that Keswell was the student’s pendency placement”. With respect to the IHO’s conclusion that the student’s pendency placement “lay in the February 2015 IEP in conjunction with the student’s operative placement at the time that pendency was invoked, which was the student’s current private school is particular perplexing”. This, because, pendency does not reflect “some hybrid” of the relevant factors. The SRO further concluded that “courts typically only rely on the operative placement” to determine pendency when there is no previously implemented IEP” and that this was not the situation in this case. Moreover, and respect to this, citing to Ventura de Paulino v.

New York City Dep’t of Educ.,959 F.3d 519 (2d Cir, 2020) and Araujo v, New York City Dep’t of Educ., 2020 WL5701828 at *3, reconsideration denied, 2020 WL 6392818 [S.D.N.Y. Nov. 2, 2020], the SRO wrote that “courts have explicitly rejected reliance on the operative placement to find that a unilaterally chosen nonpublic school constitutes pendency absent an agreement between the parents and the district”. 119 Payment for Educational Services During COVID-19: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: whether the NYC Department of Education and Chancellor Carranza (DOE) should make payments for certain school-related services at or related to students’ pendency placements at the International Institute for the Brain (iBRAIN) including special transportation and nursing services since the start of the COVID-19 pandemic in March 2020 and that at least part of which were reimbursements to iBRAIN. The parents assert that payment for such services should be

Since the SRO found that the IHO erred regarding issues relating to the student’s pendency placement, she also concluded that the IHO “also erred” in relying on his conclusion regarding pendency to then find the parents’ request for tuition reimbursement “moot” 119

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made. DOL argues that prior to payment for such services it has the right to be provided with specification, documentation and additional information.

Conclusion: The Court ordered the parties to report to it regarding “(1) the history of communication between the Plaintiffs and DOE; (2) the information requested by DOE (3) the information provided by Plaintiffs in response to DOE’s requests; (4) DOE’s rationale for finding such information inadequate; (5) Plaintiff’s rationale for failing to provide any additional information requested by DOE.” Basis of the Court’s Decision: The Court indicated that it drew “a clear distinction between having pendency funds completely cut off and undertaking an administrative process – including providing information – to receive that funding. Plaintiffs have a right [it said] to the IDEAguaranteed pendency funding; they do not, however, have a right to a blank check. That is, they are not entitled to receive that funding in whatever manner they desire, irrespective of reasonable documentation requirements of the DOE”.

Mootness: Mendez v. New York City Dept of Educ., 2020 WL 6048203, 19-cv02945 (ALC) (S.D.N.Y. Oct. 13, 2020) Dispute: The district argues that the lawsuit is moot and fails to state a claim. The parent asserts that the suit is not moot and should proceed.

Conclusion: The Court held that the lawsuit was moot and failed to state a claim.

The Basis of the Court’s Decision: The student attended the International Academy of Hope (iHOPE) during the 2017-18 school year; the student’s pendency placement. In June 2018, the parent gave the district a 10-day notice that the parent was placing the student at the International Institute for the Brain (iBRAIN) for the 2018-19 school year. In July 2018, the parent provided the district with a due process complaint asserting that it did not provide the student with a FAPE for the 2018-19 school year and requesting that iBRAIN be the student’s pendency placement. Thereafter, an IHO agreed with the parent. The district appealed and an SRO reversed the IHO and concluded that the student’s pendency placement was iHOPE. In April 2019, the parent commenced the subject action. It sought injunctive relief vacating the SRO decision and ordering the district to fund the student’s pendency placement at iBRAIN for the 2018-19 school year until the due process complaint was “finally adjudicated”. The parent additionally sought “equitable relief and damages due to [parent] as a result of the failure or delay in funding pendency placement for [the student].” Finally, the parent sought, among other things, a declaration that district violated the student’s pendency rights.

The Court pointed out that the parent had initially requested relief relating to the 2018-19 school year and that since the inception of the subject suit, the due process proceeding had been resolved in the parent’s favor, the district had not appealed that favorable decision, and had fully funded the student’s placement at iBRAIN for the 2018-19 school year. This being the case, the Court concluded that the parent’s request for injunctive relief was rendered moot. Regarding the parent’s request for declaratory relief, the Court concluded that because the tuition for the 543

2018-19 school year had been paid, the necessary “controversy of sufficient immediately and reality” was lacking. The Court rejected the parent’s arguments that the claim was not moot. The parent asserted first, that the claim was not moot as she sought “an award of damages for [the district’s] violation of her pendency rights”. Citing Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), the Court concluded that there had been no violation of the student’s pendency rights and that therefore there was nothing the parent could seek damages for. The Court also held that the parent’s attempt to distinguish de Paulino on the basis that pendency had resulted by operation of law had no merit. The parents also argued that the claim was not moot because “unless [the student’s] claims are fully adjudicated [in court, the district] will have evaded accountability for having violated [the student’s] pendency rights, thereby remaining free to duplicate its wrongful conduct towards [the student] in the future”. The Court concluded here that “[e]ven if [the student’s] pendency rights had been violated, there [was] no indication in the record that the situation will recur as to [the student]” and “[n]or does the record indicate that there is any effect of the alleged violation that has not been resolved by the payment of [the student’s] tuition for the 2018-19 school year.”

Payment: Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) Dispute: Does the IDEA authorize a school district to recoup payments made for educational services pursuant to the stay-put provision?

Conclusion: The IDEA does not authorize a school district to recoup payments made for educational services pursuant to the stay-put provisions.

Basis of the SRO’s Decision: See Dec. at p. 531 and n. 49 Ventura de Paulino v New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020) Dispute: In a matter of first impression, the Court frames the question as “whether under the ‘stay put’ provision of the IDEA parents who unilaterally enroll their child in a new private school [International Institute for the Brain or iBRAIN] and [then] challenge the child’s IEP are entitled to public funding for the new school during the pendency of [that] IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the parents and the school district and was offered at the previous school [International Academy of Hope or iHOPE]”, which was the student’s last agreed upon or pendency placement. In this case, the parents assert that IDEA’s pendency provision allows them to continue to receive pendency services at the new school. The district disagrees.

Conclusion: The Second Circuit held that IDEA’s stay put provision does not apply to the new private school and that it does not matter whether the program in the new private school is substantially similar to that of the old school and whether or not the parents challenge an IEP subsequent to the IEP at issue at the old school.

Basis of the Court’s Decision: The Court advises that the fundamental question is “whether the fact that the school district has authority to decide how the child’s agreed-upon educational 544

program is to be provided during the pendency of an IEP dispute means that the parents also have such authority.” With respect to the parents’ first argument -- that the new school is substantially similar to the old school -- on the basis of “[t]he IDEA’s [t]ext and [s]tructure”, “the [c]ost of [p]endency [s] ervices”, and the “[u]ncertainty of litigation”, the Court found that the parents have no such authority. With respect to the parents’ related argument -- where the parents also challenge the IEP for the next school year -- the Court advised that the same three considerations applied. It also recollected in this regard “that the term ‘operative placement’ has its origin in cases where the school district attempts to move the child to a new school without the parents’ consent or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision” and that neither condition was present in this case.

With respect to the new school, (iBRAIN), the Court explained that the parents could attempt to secure retroactive reimbursement in a Burlington Carter case.

Additional New York City cases dealing with pendency placement and iBRAIN the result of a unilateral placement include Neske v. New York City Dep’t of Educ. – Fed. Appx. –, 2020 WL 5868279, No. 19-4068-cv (2d Cir. Oct. 2, 2020), Abrams v. Carranza, 2020 WL 6048785, 20-CV5085 (JPO) (S.D.N.Y. Oct. 13, 2020) and Araujo et al. v. New York City Dep’t of Educ. 2020 WL 5701828, Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020).

Neske v. New York City Dep’t of Educ., --Fed.Appx. – 2020 WL 5868279, No. 194068-cv (2d Cir. 2020) Dispute: Plaintiff, the parents of a student at the International Institute for the Brain (iBRAIN) who unilaterally transferred to that school from the International Academy of Hope (iHOPE) and then instituted a challenge to the student’s IEP, asserts a claim on behalf of the student for pendency placement at iBRAIN. The district disagrees that pendency placement applies to the student’s attendance at iBRAIN. Conclusion: The Circuit Court held that iHOPE and not iBRAIN was the student’s pendency placement.

Basis of the Court’s Decision: The Court explained that “the identical set of material facts and legal issues” were confronted in its earlier case, that of Ventura de Paulino v New York City Department of Education, 959 F3d 519 (2d Cir. 2020), which held that “[a] parent cannot unilaterally transfer his or her child and subsequently initiate an IEP dispute to argue that the new school’s services must be funded on a pendency basis.” Notwithstanding, the Court evaluated the plaintiff’s three major additional arguments and dispatched them quickly.

Regarding the plaintiff’s implicit suggestion that the Circuit in Ventura “misinterpreted the stayput provision by confusing a change in schools for a change in educational programs,” the Court said that this was “merely a back-door attempt at re-litigating the key issue” in Ventura.

Regarding the plaintiff’s argument that the facts of this case were “meaningfully distinguishable” in relevant part from those in Ventura, the Court said no and stressed that iHOPE became the 545

student’s pendency placement not at the City’s instigation but rather by operation of law after the city chose not to appeal the rulings of impartial hearing officers holding that iHOPE was an appropriate placement”. Regarding the plaintiff’s argument that the case fell under footnote 5 of Ventura where the Court “reserved decision as to a situation ‘where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the student’”, the Court advised that in both cases “iHOPE continued to be available to the students at issue and the City did not refuse or fail to provide pendency services at iHOPE”.

Arelis Araujo et al. v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS) (S.D.N.Y. Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of the students were not entitled to pendency placement and that for 13 of the students, interim relief was not appropriate.

Conclusion: The Court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate.

Basis of the Court’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate. The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students were not threatened. The plaintiffs argued that “the stay-put provision acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D v. Ambach., 694 F.2d 904, 906(2d Cir. 1982). The Court rejected the district’s arguments.

With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students’ “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the District. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can [petition] to obtain such relief”. The Court stressed that what the plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency funding on that basis.”

With respect to the last five students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not “choose to place the students at iBRAIN unilaterally, 546

without input from [the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting.

Injunctive Relief and Payment: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Plaintiff students at the International Institute for the Brain (iBrain) seek injunctive relief for payment of certain services associated with their pendency placements. The district argues that injunctive relief is not appropriate.

Conclusion: The Court held that plaintiff students were not entitled to injunctive relief for payments for such services.

Basis of the Court’s Decision: In the circumstances here where there is no dispute over students’ pendency placement or where the payment for pendency services does not directly threaten the students’ pendency placements, pendency’s “automatic injunction” under Zvi. D. v. Ambach, 694F.2d 914 (2d Cir. 1982) does not apply. Likewise, in circumstances where there is no threat to the students’ pendency placement or an imminent threat to the provision of the pendency services, injunctive relief is not appropriate as the “irreparable injury” requirement does not apply. Relating to this, the Court pointed out that there was an adequate remedy at law; which in this case was the suit underlying the students’ request for relief.

Injunctive Relief: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of that number were not entitled to pendency placement and that for the 13 others, interim relief was not appropriate.

Conclusion: The court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate.

Basis of the SRO’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate.

The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students was not threatened. The plaintiffs argued that “the stay-put provision” acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The Court rejected the district’s’ arguments.

With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 547

78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the district. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can petition to obtain such relief.” The Court stressed that what the plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency on that basis.”

With respect to the last 5 students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not choose to place the students at iBRAIN unilaterally, without input from [the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting.

PRIOR WRITTEN NOTICE

There is no update at this time, check back for later versions for any update.

REMEDIES COMPENSATORY EDUCATION Boffa v. Banks, 23 Civ. 7596 (AT), 2025 WL 327381 (S.D.N.Y. Jan. 29, 2025) Issue: remedies – compensatory education Dispute: Was it proper for the IHO to extend the student’s period of special education eligibility an additional four years.

Conclusion: The District Court determined that the district’s violation of FAPE was a “gross violation” and that it was appropriate under the circumstances for the student’s period of special education eligibility to be extended four years.

Key Take Away: A “gross violation” of a FAPE can lead to an extension of the period of special education eligibility. In this case, the failure of a student to be provided with 13 years of vision education services was a gross violation of the IDEA and sufficient for the District Court to uphold an IHO determination to extend the student’s eligibility for special education services four years.

Reasoning: The student in this matter has a range of severe mental and physical impairments and is eligible for special education.

The student was enrolled in a specialized district school from 2009-2010 through 2019-2020. The district’s CSE met in January 2020. It recommended a program for the student in the same district 548

specialized school. The parent did not agree with it, gave timely notice and enrolled the student in a private school. The parent filed a due process complaint in July 2020. The CSE met again in April 2021. The parent disagreed with this IEP and reenrolled the student in the private school.

The parent subsequently filed a due process complaint in July 2021.

The IHO joined the two due process complaints in a single hearing. On May 4, 2023, the IHO determined that the district had denied the student a FAPE because of its “failure to identify or address [the student’s] vision-related deficits during the school years 2009-2010 through 20212022 and that this was a “gross violation” of the IDEA. The IHO found that the parent was eligible to receive tuition reimbursement and transportation for the 2020-2021 and 2021-2022 school years, as an additional remedy, because of the length and seriousness of the denial of FAPE, the IHO concluded that the student was entitled to a period of “extended eligibility of special education services until age 25”, a four-year period. The IHO also decided that if continued enrollment in the student’s private school became unavailable before the end of that time, the district must provide tuition to an “equally credentialed” school of the parent’s choice.

The district appealed to the SRO. It challenged that part of the IHO’s decision which found that the district had denied the student a FAPE for school years 2009-2010 through 2017-2018. It also appealed the IHO’s decision to extend the student’s period of special education eligibility by four years. The district did not appeal the IHO’s decision to grant the student tuition reimbursement for the 2020-2021 and 2021-2022 school years.

The SRO determined that the period from 2009-2010 through 2017-2018 was barred by the statute of limitations. The SRO also reversed the IHO’s decision to grant four years of extended special education eligibility. The SRO said that the student still had “at least two years beyond the 2021-2022 school year to achieve the progress guaranteed by the IDEA”. The SRO indicated that she expected the student’s current educational deficits to be mitigated given the student’s progress at the private school. Further, the SRO said that a period of extended special education eligibility was “particularly inappropriate” because it was in part based on periods of time outside the statute of limitations. Finally, the SRO said that the part of the award that guaranteed that the student be allowed to attend the private school or another “equally credentialed” school of the parent’s choice if the former became unavailable “circumvented the statutory process” that sees the CSE as periodically reviewing student’s progress and recommending appropriate services.

The parent went to the United States District Court for the Southern District of New York. She asked the District Court to reverse the SRO’s decision that claims relating to the 2009-2010 through 2017-2018 school years were barred by the statute of limitations. She also asked the Court to overturn the SRO’s decision reversing the IHO’s grant of extended special education eligibility for four years. The district disagreed. Both asked the Court to find in their favor.

The District Court found that the parent’s complaint regarding the 2009-2010 through 2017-2018 school years had been tolled and were not time-barred. Regarding remedy, the District Court 549

pointed out that a parent has the right to tuition reimbursement if the district fails to provide the student with a FAPE, if the parent gives timely notice of intent to enroll the child in an appropriate public school, and if equitable considerations support such an award to the parent. The District Court also pointed out that a parent can “additionally seek compensatory education – a [type] of prospective equitable relief – requiring a school district to fund education beyond the expiration of a child’s eligibility as a remedy for any earlier deprivations [i.e. “loss”] in the child’s education”.

The District Court pointed out that “compensatory education” was appropriate “only for gross violations of the IDEA” and “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”.

The District Court pointed out that despite evidence that the student was “a visual learner” and required “vision services”, the district “failed to take any measures to evaluate the student’s pronounced symptoms of CVI [cortical visual impairment] or recommend vision services until February 2022, [which was] thirteen years after [the student] started at [the public school]”. The District Court said that “the denial of a crucial resource like vision education services for most of a child’s education qualifies as a gross violation of the statute”. In support, the District Court referred to testimony at the hearing regarding how little the student had accomplished at the district’s school and how well she was doing at the private school she was currently attending.

About the SRO’s notion that the student’s current and future attendance at the private school would mitigate the previous damage done and the need for compensatory education, the District Court found it “hard to believe that three years at the private school would come close to mitigating a 13 year denial of vision services.” However, regarding the IHO’s conclusion that if continued enrollment in the student’s private school becomes unavailable before the end of the extended four year time frame, that the district must then provide tuition to an “equally credentialed” school of the parent’s choice, the District Court agreed with the SRO that this would “circumvent the CSE’s statutory duty to assess the student’s needs and update recommended services and placement”. With that exclusion, the District Court upheld the IHO’s finding that the student’s eligibility for special education services should be extended for a period of 4 years and through the student’s age of 25.

Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) Issue: Remedies; compensatory education, equitable relief Dispute: Whether a finding of a significant (“material”) violation of a student’s IEP gives forth a remedy of equitable relief in the form of compensatory education.

Conclusion: A finding of a significant (“material”) violation of a student’s IEP gives forth a remedy of equitable relief in the form of compensatory education.

Key Take Away: A student may receive equitable relief in the form of compensatory education if an IEP is not implemented in a significant (“material”) way.

Reasoning: 550

The student in this case has received diagnoses of attention-deficit hyperactivity disorder (ADHD) and oppositional defiant disorder and was eligible to receive special education services as a student with an other health-impairment. The student’s IEP for the 2021-2022 school year included small group counseling, individual counseling, and individual parent counseling and training.

During the 2021-22 school year, the district failed to provide the student with “at least 54 hours of 1:1 compensatory writing services, at least 30 hours of group counseling, at least 35 hours of individual counseling, and at least 8.5 hours of parent counseling and training” that were required by his IEP. The parent filed a due process complaint notice alleging that the district denied the student a FAPE for the 2021-22 school year. Among other things, the parent claimed that the district did not properly implement the student’s IEP and that as a result, he should have been given the above services, but was not. As relief, the parent requested compensatory education in these amounts to make up for the district’s failure to provide those services.

The IHO concluded that IDEA provides that if a district fails to implement an IEP in a material way, then those claims are actionable. The IHO here determined that the district did fail to implement the IEP in a material way with respect to the services at issue.

Uon review by the SRO, the district argued that because the IHO did not find the IEPs to be substantively inappropriate, that a compensatory education award was not warranted.

The SRO determined that a hearing officer can find that a district failed to provide appropriate programming and therefore a FAPE even if they do not find the IEP to be deficient. The SRO agreed with the IHO that a district can deny a student a FAPE if there is a material deviation or a material failure to deliver the services included in their IEP. The SRO agreed with the IHO’s decision that the district failed to provide the student with a FAPE because of its material failure to implement the student’s IEP. The SRO also agreed with the IHO’s equitable award of compensatory education in the amount specified in the IHO’s decision.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: May a district be required to provide both tuition reimbursement and compensatory education during the same time period.

Conclusion: The SRO concluded that, in the circumstances of this case, it would be appropriate for the student to receive both tuition reimbursement for tutoring services and compensatory education during the same period of time.

Basis of the SRO’s Decision: 551

In this case, the SRO found that the student was eligible to reimbursement for tutoring expenses and also for compensatory education. The district had argued that the parents were “double dipping by seeking both reimbursement for private reading instruction and compensatory education for the same time period”.

The SRO first pointed out that compensatory education is “an equitable remedy that is tailored to meet the unique circumstances of each case”. With respect to caselaw, the SRO pointed out that “[s]ome courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period” and cited to two cases decided by the Third Circuit Court of Appeals.

The SRO also cited to a case in the Southern District of New York, which had overruled a previous SRO decision, for the proposition that “awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of both education placement and educational services may be necessary to provide a particular student with a FAPE”. See V.W. v.

New York City Dep’t of Educ., 2022 WL 3448096, at *5-*7(S.D.N.Y. Aug. 17, 2022).

After further discussion, the SRO concluded that “it would appear that an award of reimbursement for unilaterally obtained services and an award of compensatory reading instruction based on the same denial of FAPE for the same school years, under the circumstances presented in this matter would not be duplicative”. Consistent with this, based on “the totality of the evidence in the hearing record”, the SRO determined that “the parents’ unilaterally obtained reading instruction delivered during the 2021-22 school year, while appropriate, was insufficient to remedy a denial of FAPE beginning in February 2020 and continuing through the 2021-22 school year”.

The SRO found that “a reasonable award of compensatory education [was] 360 hours of direct reading instruction”.

R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) Dispute: Was the student eligible for compensatory education Conclusion: The Court reversed the SRO and determined that the matter should be remanded to the IHO to supplement the record and determine an appropriate compensatory award, if applicable.

Basis of the Court’s Decision: The IHO determined for the period of time March 14, 2018 through June 30, 2019 the student was not denied a FAPE. The SRO reversed the IHO’s decision and determined that during that period the district denied the student a FAPE.120 At the same time, the SRO determined that the This was based on the fact that the district had failed to conduct an FBA/BIP and the CSE’s recommendation to continue the student in an ICT classroom for the remainder of the 2017-18 school year when the student’s teachers had already concluded that he was clearly failing to progress.

120

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parents were not entitled to compensatory education because their request for an award of prospective placement of another year at the student’s private school was “speculative” and that the parents’ conduct “weighed against granting relief”.

The plaintiffs commenced an action in District Court challenging, among other things, the SRO’s decision that the student should not be granted compensatory education. At that time, the district had dropped its contention that it had offered the student a FAPE during the above time period. Therefore, this was not an issue before the Court.

The Court held that “[i]n enacting the IDEA, Congress did not intend to create a right without a remedy”; that “[t]he IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE [;] and [that] the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for a denial of a FAPE” Moreover “[s]uch compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”. “In some situations, where the record reflects that the alleged deficiencies suffered by the student have already been mitigated (or even totally alleviated), an award of compensatory education may not be required”.

The Court determined that here, it was “not clear” that the latter was the case and that “[a]bsent factual findings that there [was] no plausible way to remediate the nearly year and a half denial of FAPE … [the] Court is not prepared to prematurely shut the door on [the parents’] claim for relief”.

With respect to the parents’ request for prospective relief of another year at the student’s private school, the Court held that “[g]enerally SRO determinations with respect to prescribing compensatory education plans are entitled to significant deference because such determinations involve matters of educational policy”. The Court therefore found that “the SRO’s determination that an additional year at [the student’s private school] is inappropriate to compensate [the student]” for the [d]istrict’s prior denial of a FAPE is affirmed”.

At the same time, the Court found that “the SRO’s inquiry should not have ended there” as the parents requested before the SRO “any other, further, or different compensatory education as deemed appropriate”. Regarding this, the Court found that “[t]he SRO should have considered whether any such compensatory education could be reasonably calculated to compensate [the student]”. The Court said further “[t]he fact that [the district] conceded that there was a violation of the IDEA and a subsequent denial of a FAPE satisfies the [parents’] burden of proving entitlement to a properly crafted compensatory award”. With respect to the parents’ obligation to propose “a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record, [the patent] need not have a perfect case to be entitled to a compensatory education award”. The Court wrote that “once a [parent] has established

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entitlement to an award, simply refusing to grant one [is inappropriate]”. Moreover, the Court stated to the Court-developed principal that “an IHO may provide the parties additional time to supplement the record if they believe there is insufficient evidence to support a specific award [;] but simply choosing instead to award [the parent] nothing does not represent the qualitative focus on the child’s individual needs” and so was also inappropriate.

The Court also did not “agree with the SRO’s second purported basis for denying relief” which was that the parents’ “conduct precluded it”. The Court said that it “decline[d] to afford deference to the SRO’s single paragraph analysis of [the parents’] conduct”. The Court said here that “[o]nly a thorough and careful equities analysis would be entitled to deference”. The test, the Court said, was that parental conduct “should not preclude relief” unless such was “uncooperative, obstructive, or otherwise unreasonable”. Contrary to this, the Court found that the parents’ decisions “were made with [the student’s] best interests in mind and that any delay in conducting evaluations resulted primarily from the [d]istrict’s own conduct”. 121 The Court further found that “[t]o the extent that the SRO’s decision to deny relief was based on its assertion that [the student’s] lack of progress was never due to any academic needs or cognitive delays and solely the result of interfering behaviors, that [this] alone does not render impracticable an award of compensatory education. The Court said that “[w]hether compensatory education for [the student] would address academic needs, interfering behaviors, or any other needs is not relevant to its plausibility as there are a wide range of services that can be implemented as compensatory education”.

The Court additionally found that “[t]he paucity of the record before this Court on the issue [of compensatory education] precludes crafting such a remedy at this stage”. It concluded that “[t]he IHO, however, after supplementation of the record, will be in a better position to structure a plan appropriate for [the student] including similar kinds of services or others”. The Court also felt that “remanding to the IHO is appropriate because the Court [believed] that the IHO should provide [the parents] with an additional opportunity to supplement the record with evidence necessary to support a compensatory award that is reasonably calculated and individually tailored to [the student’s] needs and demonstrates a causal relationship between [the student’s] current educational deficits and his earlier denial of a FAPE”.

The Court concluded that “[t]he SRO’s determination that no remedy is warranted for the denial of a FAPE to [the student] from March 2018 to June 2019 is, accordingly, reversed and remanded to the IHO to supplement the record and determine an appropriate compensatory award, if applicable.

121

That there is a connection between an award of compensatory education and equitable considerations is not clear.

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DIRECT PAYMENT Moonsammy v. Banks, 23 Civ. 10491 (PAE), 2024 WL 4277521 (S.D.N.Y. Sept.

23, 2024) Issue: Direct Payment Dispute: Should the IHO have ordered “direct payment” to the private school and transportation provider as opposed to the reimbursement of costs incurred.

Conclusion: The Court remanded the case to the SRO, and potentially to the IHO, to develop an appropriate record of equitable considerations in order to make such a decision.

Key Take Away: Upon a showing of a denial of FAPE and the appropriateness of the parent’s private program, a parent does not have an “automatic right” to payment by the district directly to the private school or services provider as opposed to reimbursement to the parent.

Reasoning: This case involves a child with a disability under the IDEA. The student is non-ambulatory and non-verbal and requires one-to-one assistance to participate in classroom activity and to attend to her basic needs. The student was six years old at the time the legal action began.

The student was scheduled to start kindergarten in 2022. The district CSE met in August 2021 and recommended a special education program. In March 2022, the parents told the district that they were rejecting the program as inadequate that they were enrolling the student in a private school.

The CSE met again in May 2022 and recommended a special education program that was “substantially similar” to the program recommended by the August 2021 CSE. After the CSE meeting, the parents decided that the student would remain at the private school.

The parents filed a due process complaint with the district in October 2022. The due process complaint charged that the district had not provided the student with a FAPE from August 2020 forward and that the student’s private school had and was providing the student with an appropriate education. The parents requested that the district pay tuition directly to the private school and to the transportation company that was taking the child back and forth from the private school; that is make “direct payment” to the private school and the transportation provider.

The IHO determined that the district had provided a FAPE to the student, so the district did not have an “obligation to fund” the student’s attendance at the private school and transportation provider. Although the IHO did not need to, he also found that the private school was an “appropriate” placement for the student. The IHO further said that he would have reduced the student’s award by 25% because of unspecified equitable considerations. The IHO also said that because had he determined that the district provided the student with a FAPE, he would have 555

ordered partial reimbursement to the parents. He stated that he would not have awarded direct payment to the parents.

Both the parent and the district appealed to the State Review Officer (SRO). The parents argued that the district denied the student a FAPE. Again, as a remedy the parents requested that the district pay the private school’s tuition and transportation provider directly. The district argued that the parents “failed to cooperate with the CSE process” so there should be a 25 percent reduction in tuition reimbursement. The district also argued that any reimbursement awarded to the parents should reflect the student’s actual attendance at and transport to and from school and be made only upon “proof of receipt of services”.

The SRO issued a decision that both the parents and the district were partially correct. He concluded that the district did not provide the student with a FAPE. He decided that the private school was an appropriate placement on the basis that the district did not appeal this part of the IHO’s decision. Finally, the SRO determined that there was no reason to reduce the parents’ award based on the parents’ “predetermination” to send the student to the private school. As a remedy, the SRO agreed with the IHO. He found direct payment of tuition to the student’s private school and tuition provider inappropriate because the parents had not shown an inability to pay.

Instead, the SRO concluded that the district should “reimburse” the parents for payment of tuition at the private school and to the transportation providers.

The parents challenged the SRO’s decision by filing a lawsuit in the United States District Court for the Southern District of New York. They “challenged” the SRO’s decision to reimburse the parents for any payment to the private school and to the transportation provider and for not ordering the district to make payment directly. The district argued that direct payment was only allowed in “appropriate circumstances” and here only if the parents showed that they had a financial inability to pay. The district pointed out that the parents made no such claim and said that therefore the SRO correctly denied the request for direct payments.

The District Court summarized existing caselaw. It said that the IDEA only specifically authorized the remedy of tuition reimbursement. 122 However, the District Court also pointed out that the IDEA gives courts the ability to grant “appropriate” relief and therefore direct payment could be ordered when “appropriate”. 123 Referencing a case from the Second Circuit that “a district court may consider many factors in determining the parent’s entitlement to direct payment”, the District Court listed the following non-exclusive factors including “(1) whether a [parent’s] unilateral withdrawal of her child from the public school was justified, (2) whether a [parent] provided the department with adequate notice of the withdrawal, (3) whether the amount of private school tuition was reasonable, (4) whether the [parent] should have availed herself of need-based scholarships or other financial aid from the private school, and (5) whether there 122

See 20 U.S.C. 1412(a)(10)(C)(i), (ii).

123

See 20 U.S.C. 1415(i)(2).

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was any fraud or collusion in generating (or inflating) the tuition to be charged to the [district], or whether the arrangement with the school was fraudulent or collusive in any other respect”.124 Again, looking at the caselaw, the District Court pointed out that there was “no consensus” as to whether a parent must show financial hardship from or a durable legal obligation to pay before a court may order direct payment instead of reimbursement. The Court also said that while it had been assumed by some courts, there was no statutory authority for an IHO or SRO to order direct payment.

The District Court pointed out that it could overturn the SRO’s decision only by taking the view that the denial of a FAPE “automatically entitled a parent to the direct payment remedy without ever needing to make an individualized showing that the equities favored that. The District Court also pointed out that the attorney for the parents “did not make any record of any facts particular to them that supported entry of [a direct payment] order” based on appropriateness.

The District Court said that it was unwilling to decide that parents as a matter of right could obtain a direct payment remedy and pointed out that the statute and caselaw pointed to such a remedy only “in appropriate circumstances”. The District Court said here that there were “sound policy justifications” for parents who could afford it to make payment first and receive reimbursement after the fact. Such an arrangement the District Court said would “smoke out excessive charges”, “promote greater pricing discipline” and may provide a reason for “parents to question and negotiate other charges that may be outsized”.

The District Court pointed out that there was “little effort by any participant in the administrative proceedings to develop a factual record that would enable a sound exercise of judicial discretion regarding appropriateness. Looking again at the parents’ counsel, the District Court said that, however, it was “unprepared to punish the parents and the student for the lapses of their counsel to adequately develop the administrative record below and before [the] Court”.

The District Court determined that it would send the case back to the SRO (who could if he thought it appropriate, further send the case back to the IHO) to develop the record. The District Court said that this should include a specific review of the record against the “appropriateness factors” set out above and that the SRO should consider whether the evidence equitably supports a remedy of reimbursement as opposed to direct payment.

124

See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 452, 461 (2d Cir. 2014).

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Cohen v. New York City Dep’t of Educ., et al., 1:21-cv-06260-MKV, 2023 WL 6258147 (S.D.N.Y. Sept. 26, 2023) Dispute: Whether, in order to receive direct retroactive payment of tuition, parents are required, as part of equitable considerations, to prove an inability to pay the cost of the private school once they have shown that the district has failed to provide the student with a FAPE and the student’s private school is appropriate.

Conclusion: The Court reversed the SRO and concluded that in order to receive direct retroactive payment of tuition, once the Burlington-Carter factors were satisfied, as a part of the equities, the parents were not required to prove an inability to pay the cost of the private school.

Basis of the Court’s Decision: The student in this case “was a fourteen-year-old-boy who suffered from a brain injury due to a seizure disorder” and who attended a private school.

Upon review, the IHO concluded that the district failed to offer the student a FAPE, that the student’s unilateral placement at the private school was appropriate and that the equities favored the parents’ request for “public funding of [the student’s] placement at [the private school] and related services”. “In relevant part”, the IHO held that the parents “were entitled to direct tuition funding (instead of reimbursement upon proof of payment”. The district appealed.

The SRO reversed the IHO regarding the direct payment of tuition. While the SRO agreed that the parents had shown an obligation to pay the private school by virtue of a tuition contract, he said that the record did not include any evidence of parent inability to pay the private tuition.

With that in mind, the SRO concluded that the parents “were entitled to tuition reimbursement only rather than an obligation to pay [the private school]”.

The Court first pointed out that the dispute concerned “a disagreement regarding the form of equitable relief to which [the parents were] entitled under the IDEA and [did] not involve any disputes contained in the factual record”. This being the case, the Court said that the issue for determination was a matter of law only and did “not concern specialized knowledge on educational policy, the Court ow[ed] no deference to state hearing officers.”

Regarding the merits, the Court first pointed out that the Burlington and Carter cases “held that Congress intended retrospective reimbursement to parents by school officials as an available remedy” in circumstances where “(1) the district “failed to provide the child with a FAPE and “(2) the alternative private educational services obtained by the parents were appropriate to their child’s student’s needs” and that, upon such findings, Carter directed that “both administrative review officers and courts are required to evaluate the equities in considering a tuition reimbursement claim”.

The Court also pointed out that subsequent to the Burlington and Carter cases, the Second Circuit held that “where the equities call for it, direct payment [to the private school] fits comfortably 558

within the Burlington-Carter framework because, like reimbursement, direct payment by the district to the private school that provided the required educational program merely requires the school district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014).

The Court further said that “[a]lthough the Second Circuit has not expressly weighed in on the issue, courts in this District have also held that courts may award direct payment to a private school retrospectively and not solely prospectively”. See Maysonet v. New York City Dep’t of Educ., No 22 CIV. 1685 (LGS), 2023 WL 2537851, at *5 (S.D.N.Y. 2023); P.K. ex rel. S.K. v. New York City Dep’t of Educ., 819 F.Supp.2d 90, 118 (E.D.N.Y. 2011), aff’d, No. 11- 3525, 2013 WL 2158587 (2d. Cir 2013); Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F.Supp.2d 403, 406 (S.D.N.Y. 2011). Moreover, “in those cases, the courts have ruled that where parents lack the financial resources to front the costs of private school tuition and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Bulington factors have a right to retroactive direct tuition payment relief”. See Mr. and Mrs. A., 769 F. Supp. 2d at 428.

The district argues, like the SRO held before, that, consistent with Mr. and Mrs. A., “the IDEA may authorize a retroactive direct payment remedy such as direct payment to the private school” “only” in “appropriate circumstances where [the parents] meet their burden of demonstrating financial inability”. In the instant case, the district argues that because the parents “failed to introduce any evidence demonstrating financial hardship [they] are not entitled to direct retrospective payment but instead must pay the tuition and thereafter seek reimbursement (with proof of payment [by the parents]).” On the other hand, the parents take the position that “the IDEA does not require the parent of a student with disabilities to establish a lack of financial resources in the first instance to receive an award of direct payment of tuition”.

The Court first stated that it was “not aware of any legal precedent within this Circuit directly addressing whether parents – as a necessary prerequisite – must show their inability to pay for appropriate unilateral placement in order to receive an award of retrospective direct tuition funding” Citing to E.M. again, the Court advised that “in cases such as this, where it has already been established that the district has failed to provide a child with a FAPE and [] the private educational services obtained by the parents were appropriate, an award for direct retrospective payment would merely require the district to pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP”. See E.M., 758 F. 3d at 453.

The Court continued that “[t]o place a burden on parents to establish financial inability to pay for an alternative private placement, when the district has failed to provide their child a free and appropriate public education as required under the IDEA, entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at no cost to the parent. N.Y. Educ. Law Section 4401(1) (McKinney)”. The Court went on to say that “[t]he consistent message of this District’s decisions is that a child’s access to a FAPE cannot be made 559

to depend on his or her family’s financial ability to front the costs of private school tuition”. Mr. and Mrs. A., 769 F. Supp 2d at 406. The Court concluded that “[t]o require otherwise will inevitably result in disparate requirements for parents of disabled children based on financial resources, notwithstanding the IDEA’s requirement that all children with disabilities are entitled to a free education” and that “[a]ccordingly, the Court [found] that [the parents] are not required to establish financial hardship in order to seek direct retrospective payment to [the private school] …”

Regarding the equities, the Court first pointed out that both parties were in agreement that the first two prongs of the Burlington-Carter analysis were present and that therefore there was no reason to engage in a detailed analysis of those two factors and that, as the parties argued, the equities were appropriate to consider. The Court advised that the IDEA “provides courts broad discretion to grant such relief as is appropriate”. The Court pointed out that the parents were only seeking “retrospective relief for the education and services that [the private school] had already rendered to [the student]...” It cited to E.M. again for the proposition that “where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework because direct payment to the private school merely requires the school district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP”. See E.M,, 758 F. 3d at 453. The Court explained that here “[t]he equities further weigh in favor of direct payment to [the private school] because, as [the SRO’s] decision noted, [the parents] demonstrated a legal obligation to pay [the private school] by offering the enrollment contract with the school into evidence”. And the Court reiterated that the parents “were not required to establish financial hardship to seek direct retrospective payment -- after the district failed to provide [the student] with a FAPE … -- because such a burden would contradict IDEA’s core purpose of ensuring that all children with disabilities have available to them a free appropriate public education”. The Court said, to require more, and in particular, “[t]o 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.” Again, harkening back to E.M., the Court followed up and reiterated that “[d]irect payment to the school simply requires the [district] to belatedly fund expenses that it was obligated to pay all along”. E.M., 758 F. 3d at 453. And again referring to Mr. and Mrs. A., the Court found that “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 relief. See Mr. and Mrs. A., 769 F. Supp. 2d at 428.

Application of a Student with a Disability, Appeal No. 23-102 at pp. 20-21 (July 31, 2023) Dispute: Whether it was appropriate for the district to be ordered to make direct payment of the student’s tuition to the student’s private school?

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Conclusion: The SRO held that it was not appropriate for the district to be ordered to make direct payment to the student’s private school for the student’s tuition.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

“It is well settled that parents who reject a school district’s IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk. In such instances, retroactive reimbursement to parents by a school district is an available remedy under the IDEA. Alternatively, with regard to fashioning equitable relief, courts have determined that it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so”.

Emphasis in original.

The SRO explained that here “[w]ith respect to the parents’ financial obligation, the hearing record includes an enrollment contract signed by the parents … for the student’s attendance at [the private school] … and a contract signed by the parents for the student’s attendance [at the private school] for [the next school year]”. The SRO found that the private school contract “is sufficient to demonstrate that the parents incurred a financial obligation to pay the costs of the unilateral placement inclusive of related services and travel”. Further and with respect to travel, the SRO held that the transportation agreement “demonstrates that the parents incurred a financial obligation to pay the transportation costs” The SRO further explained that “[w]ith regard to the parents’ ability to pay, since the parents selected [the private school] as the unilateral placement and their financial status is at issue, it was the parents’ burden of production and persuasion with respect to whether they had the financial resources to front the costs of the services”. The SRO pointed out that “the parents have established a financial obligation for the costs of the student’s tuition at [the private school]; however, as correctly argued by the district, the parents have not demonstrated [in any way] an inability to pay”. The SRO concluded that “[g]iven the lack of information in the hearing record regarding the parents’ financial resources, direct payment is not an appropriate form of relief; however, tuition reimbursement shall be awarded [] for the student’s attendance at [the private school] … upon proof of attendance and payment for services delivered”. The SRO wrote also that the district was also responsible for the student’s transportation costs to the transportation provider upon proof of payment.

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Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Whether it was appropriate to provide the private school with direct payment of the costs of tuition and associated expenses or whether the circumstances support tuition reimbursement to the parent.

Conclusion: The SRO determined that under the circumstances of the case, it was appropriate, upon proof of payment made, to provide tuition reimbursement to the parent.

Basis of the SRO’s Decision In circumstances where the parent “had no financial standing to sue for direct retrospective payment to private placement, where terms of [the] enrollment contract absolved [the parent] of responsibility for paying tuition … retroactive reimbursement to parents by a school district is an available remedy under the IDEA.” “Alternatively, with regard to fashioning equitable relief, courts have determined that it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (3) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so.”

Emphasis supplied.

In this case, the SRO determined that the district failed to provide the student with a FAPE, that the private school was appropriate for the student, and that the equities supported the payment of tuition for the private school. “The parent has [now] requested that the district fund the student’s attendance at [the private school] by directly paying [that private school] rather than by reimbursing the parent for the out-of-pocket costs of the student’s tuition”. “[T]he hearing record includes an enrollment contract signed by the [parent] … for the student’s attendance at [the private school]” for the relevant school year. Upon review, “the contract provided that the parent would be responsible for the tuition and supplemental costs for the student’s attendance at [the private school].” The record also includes a “transportation service agreement”. The SRO determined that the contract with the private school was “sufficient to demonstrate that the parent incurred a financial obligation to pay the costs of the unilateral placement, inclusive of the costs of related services and transportation”.

Regarding “the parent’s ability to pay, since the parent selected [the private school] as the unilateral placement and his financial status [was] at issue, it was the parent’s burden of production and persuasion with respect to whether he had the financial resources to front the costs of the services”. Upon review of the record, the SRO determined that even though “the parent [had] established a financial obligation for the costs of the student’s tuition at [the private school] … the parent has not demonstrated an inability to pay”

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With the above in mind, the SRO determined that,”[g]iven the lack of information in the hearing record regarding the parent’s financial resources, tuition reimbursement, as well as reimbursement for the costs of transportation, [should] be awarded for the student’s attendance at [the private school during the relevant] school year upon proof of payment for services delivered”.

Maysonet v. New York City Dep’t of Educ., 22 Civ. 1685 (LGS), 2023 WL 2537851 (S.D.N.Y. Mar. 16, 2023) Dispute: Whether the circumstances of the case support an award of direct tuition payment.

Conclusion: The Court reversed the SRO and concluded that the circumstances of the case supported an award of direct tuition payment.

Basis of the Court’s Decision: In this case, after finding that the district denied the student a FAPE, that the student’s unilateral placement was appropriate, and that equitable considerations supported a payment of 80% of the private school’s tuition, the SRO ordered the remedy of tuition reimbursement.

The Court explained that the SRO relied on Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) for the conclusion that it has the authority to make direct payment to the private school in circumstances where the parent “had a documented inability to pay tuition and paid only nominal amounts to the school under a payment plan”. The Court explained that the SRO took this further and decided “that Mr. and Mrs. A incorporated a requirement that parents show their inability to pay prior to an award of direct tuition funding”.

Because the parents “had not proffered evidence of their inability to pay”, the SRO required the district “to fund [the student’s] placement [only] upon proof of payment for services delivered and eliminated the possibility of direct payment to the [private] school”.

The Court first pointed out that the case at hand did “not reach the question of whether parents must show their inability to pay in order to receive an award of direct tuition funding…” This, because, “after the administrative proceedings and at the Court’s request, [the parents] proffered evidence of their inability to pay tuition and other costs”. With respect to this, the Court also pointed out that the consideration of additional evidence was allowed by virtue of IDEA’s provision that courts may “consider additional evidence on appeal from an administrative proceeding”. See 20 U.S.C. 1415(i)(2)(C). Relative to this, the Court cited to caselaw for the specific proposition that such additional evidence could be introduced on behalf of a parent to show the parents’ financial condition.

The Court concluded that “[t]he IDEA’s broad grant of discretion and circumstances of [the] case” support[ed] an award of direct tuition payment”. With respect to the circumstances of the case, the Court pointed to “[the parent’s] financial status, the time elapsed between when services were provided to [the student] and adjudication of [the parents] claim and [the district’s undisputed obligations to cover the outstanding costs”.

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More specifically, the Court pointed to the IDEA’s provision “[t]hat the IDEA provides broad discretion to grant such relief as … is appropriate. See 20 U.S.C. 1415(i)(2)(C)(iii). And more specifically, the Court pointed to caselaw for the additional proposition that “[t]he broad spectrum of equitable relief contemplated under the IDEA encompasses, in appropriate circumstances, a direct-payment remedy”. See E. M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014). That Court (E.M.) explained, the Court said that direct payment “merely requires the school district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP”. See E.M., 758 F.3d at 453-54.

E.M. also concluded, the Court said, that direct payment “also furthers the IDEA’s remedial purposes by extending the unilateral withdrawal option to parents with limited financial means, who otherwise could not avail themselves of it”. E.M., 758 F.3d at 454.

The Court found that an award of direct tuition payment to the private school “would further both of these purposes”. In the first place, “[t]he parties agree that … [the school district] was “ultimately responsible for the costs of [the student’s] attendance at [the private school]”.

Further, the Court said that the district “offers no persuasive reason for requiring [the parents] to front the costs of tuition for services rendered almost five years ago (even assuming they could do so) and then receive reimbursement.”

“In light of the IDEA’s clear purpose of providing a FAPE to disabled children regardless of their financial resources” the court held that “an award of direct payment [to the private school] is appropriate” and that “in sum, the circumstances of this case support an award of direct tuition payment”.

Application of a Student with a Disability, Appeal No. 20-122 (9/17/20) Dispute: The parent asserts that the hourly rate of pay for the SETSS provided should be $150 per hour. The district contends that the hourly rate of pay to the SETSS agency should not exceed $125 per hour.

Conclusion: The SRO determined that there was no basis to overturn the IHO’s decision that the hourly rate of payment for the SETSS provider should be $110 per hour and not to exceed $125 per period. 125 Basis of the SRO’s Decision: Initially, the SRO found that the District “had abdicated all responsibility for the delivery of the recommended SETSS” and that the parent had been left to obtain the SETSS services on her own. In such circumstances, the SRO noted that direct payment to the agency was an appropriate form of relief and that the Second Circuit had held that such relief “fits comfortably within the Burlington-Carter framework”.

Regarding the specific hourly rate, the SRO pointed to the lack of information regarding the rate that the parent paid the agency providing SETSS, that the SETSS provider testified that she was 125

But note as set forth below, that the SRO held that the payment for the SETSS services was to be $125 per hour.

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paid $125 per hour, that the parent had not yet paid anything for the SETSS, that the parent testified that she was ”responsible for paying them”, and that there would be ”an agreement after the hearing” and determined that the rate of payment should be $125 per documented hours of time spent.

INJUNCTIVE RELIEF M.H. v. New York City Dept. of Educ., 24-CV-2431 (AS), 2025 WL 27534 (S.D.N.Y. Jan. 3, 2025) Issue: Remedies -- injunctive relief Dispute: whether the District Court had the power to order relief on the parent’s “systemic” IDEA claims (IDEA violations that affected more than just one student).

Conclusion: The District Court did not have the power to review the parent’s claims of systemic relief.

Key Take Away: If a parent wishes to file a lawsuit seeking to review a district’s conduct regarding more than one student, the parent must point to specific examples of how the district’s conduct affected other students.

Reasoning: The parent’s IDEA claims argued the existence of “systemic” IDEA violations (violations that affected more than just the student). The District Court concluded that the parent’s IDEA claims were “barebones and conclusory” and were not sufficient for the Court to review them. The District Court concluded that the parent’s lawsuit gave no facts from which the District Court could infer that the parent’s claims represented an issue that affected other students. The District Court said that the parent’s claims represented only the parent’s argument about the student’s receipt of IDEA services or methodologies. This, the District Court said, must be handled through IDEA’s administrative process.

J.Z. v. New York City Dept of Educ., 23 Civ.9779 (DEH), 2024 WL 1833613 (S.D.N.Y. Apr. 26, 2024) Issue: Injunctive relief, pendency placement, and related services Dispute: Did the parents meet the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Conclusion: The Court found that the parents met the standard for injunctive relief based on pendency such that the district was required to provide certain related services.

Key Take Away: A court may enforce a student’s right to related services as a result of pendency (the last placement agreed upon by the parent and the district) by ordering that the services in the pendency order be provided.

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Reasoning: Plaintiffs are the parents of two students with disabilities. The first student is a 17-year-old boy with Autism. The second student is a 12-year-old boy with CHARGE syndrome.

The parents allege that for at least the past 6 years the district has failed to provide the students with a FAPE. The parents have filed due process complaint notices on behalf of their children and have “repeatedly prevailed against the district at impartial hearings”. In relevant proceedings, the IHOs have determined that both students are entitled to related services as a result of pendency.

The district did not appeal either of the IHOs’ pendency-related orders.

The Court explained that for a variety of reasons the “uncontested record” shows that the parents “have searched for service providers for their children for years” but have not been successful in having their children receive the panoply of related services that have been ordered in their IEPs. Additionally, the parents have requested that the district “provide” related services for the students but this has not occurred. At the time of the pendency orders regarding the students, the district had still not provided the students with related services that were a part of the relevant pendency orders.

The parents filed suit on November 5, 2023 and requested preliminary injunctive relief on March 18, 2024. As a result of discussions between the parties and communications with the Court, at the time the parents’ motion for injunctive relief came before the court, only some but not all of the ordered related services had still not been provided.

Subsequent to the hearing of the motion, the Court – with two exceptions – granted the parents’ request for preliminary injunctive relief. The Court first pointed out that in order “[t]o obtain a preliminary injunction, a party must demonstrate: (1) that it will be irreparably harmed if an injunction is not granted [ ] (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and [3] a balance of the hardships tipping decidedly in its favor.” The Court further pointed out that a “heightened standard” applies to circumstances “where [1] in injunction is mandatory or [2] the injunction will provide … substantially all the relief sought, and that relief cannot be undone even if a defendant prevails at a trial on the merits”. In such a situation the standard for injunctive relief becomes “[1] a clear or substantial likelihood of success on the merits and [2] a strong showing of irreparable harm, in addition to showing [3] that the preliminary injunction is in the public interest.” In its decision, the Court concluded that the parents’ request for a preliminary injunction met both of these tests.

With respect to the likelihood of success on the merits, as indicated, the Court concluded that, with two exceptions, despite the pendency orders’ requirement that the district “provide” the related services, the district had not done so but only offered “to fund” them. The Court determined that by failing to do this, the district did not provide the students with a FAPE and 566

that “[a]s a result”, the Court said that “the [students] are not receiving the meaningful benefits to which they are entitled”. Therefore, the Court concluded that the parents have demonstrated a likelihood of success on the merits.

The Court rejected the district’s arguments: first that it had agreed only to fund and not to provide services to the students; and second, that its recent change in an IEP, which the parents’ objected to, relieved it of the obligation to provide relevant related services to one of the students. Regarding the former, the Court disagreed. It said that, with only one exception, the record showed that the district had agreed to provide the services. Regarding the latter, the Court pointed out that the change of an IEP, which the parent disagreed with, did not effect a change in the student’s pendency placement. Regarding the exception, the Court concluded that the pendency order relative to one of the students’ right to speech-language therapy only ordered the district “to fund” and not “to provide” the service.

Regarding irreparable harm, the Court concluded that the parents “have made a strong showing that [the students] are suffering and will continue to suffer irreparable harm absent the Court’s intervention”. The Court said that one of the students had “exhibited significant delays in all areas cognitively, academically, socially, in communication, behaviorally, functionally and physically”.

With respect to the second student, the Court concluded that without access to vision therapy the student had “regressed” and that without access to vision education services, the student “[had] been unable to access the school curriculum”.

The Court rejected the district’s arguments that the injury the students suffered, while “serious”, did not rise to the level of “irreparable injury”. Nor did it make a difference, the Court said, that related services had been denied to the student “for years”. Finally, the district argued that it had “located” relevant therapists; which the Court said was different from actually providing the services which in all but one case had been required by the pendency order. However, the Court determined that the level of irreparable injury had “abated somewhat” regarding one of the students as speech-language therapy by a provider “has been located” and begins “immediately”.

Regarding “[t]he public interest and the balance of hardships”, the Court concluded that the “public interest weigh[ed] in favor of [the students] receiving their mandated services”. The Court said that it was “in the public interest to require the [district\] to comply with the IDEA, with the orders of its own impartial hearing officers, and with its legal obligation to implement pendency”. The Court rejected the district’s argument that “logistical challenges” should preclude its responsibility to provide services. The Court also rejected the district’s arguments that it was “actively working” to implement the services, pointing out that, with the exception above, the services had not been implemented. The Court also pointed out that such had only been “spurred” by the litigation and the parents’ preliminary injunction motion.

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Simmons v. Mount Vernon City Sch. Dist., et al., 2024 WL 2837625, No. 23-288cv (2d Cir. June 5, 2024) Issue: exhaustion of administrative remedies Dispute: Did the parent exhaust her administrative remedies.

Conclusion: In the circumstances of this case, the exhaustion of remedies doctrine did not apply.

Key Take Away: The Supreme Court has made it possible for a parent to file claims seeking relief that the IDEA does not provide even though the parent has not first gone through the IDEA’s administrative procedures and even though the claim is based on a violation of the IDEA. In this case, the Second Circuit Appeals Court specifically held that the parent could file a claim for money damages under the ADA, Section 503 and Section 1983 for a violation of the IDEA without first going through the IDEA’s administrative procedures. With further respect to exhaustion of administrative remedies, the Second Circuit Appeals Court also held that a parent is not required to exhaust the IDEA’s administrative procedures prior to filing a lawsuit in federal court seeking the enforcement of a settlement agreement reached as a result of a resolution meeting.

Reasoning: On November 9, 2017, the student in this case was suspended for five days “for possessing marijuana at school”. The matter was referred for a “superintendent’s hearing”. Thereafter, the student’s parent requested a manifestation determination review and in due course filed a due process complaint notice on January 3, 2017.

The due process complaint notice “stated that [the student] had been suspended for over 40 days, and that he had not been allowed to return to school pending a superintendent’s hearing”.

The parent asserted that the district’s actions referring the matter to a superintendent’s hearing without a manifestation hearing was biased and prejudiced [the student] from further education.

[The parent] also objected to the disciplinary charges and argued that [the student’s] psychologist’s records and records of a previous manifestation hearing would demonstrate that his condition alters and contributes to his behavior”. “[T]he parties [then] met with an impartial hearing officer (IHO)”. After proceedings, the IHO entered an interim order on February 3, 2017. The interim order provided that the district would hold a superintendent’s hearing on February 10, 2017, unless the parties reached an agreement before that date. The interim order further provided that if [the student] were found guilty at that hearing, the district would hold a manifestation hearing…” The parent “alleges that [the district] did not hold a superintendent’s hearing where [the parent] was a participant”.

On March 10, 2017, the district and the parent entered into a settlement agreement “resulting from a resolution session” to address both the disciplinary charges and the due process complaint notice. The parent alleges that the district “did not comply with the settlement agreement, and that the district continued to violate her rights”.

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On November 8, 2019, the parent commenced an action in District Court. Among other things, the action asserted violations of the IDEA, and set forth claims for damages under the ADA, Section 504, and Section 1983. Thereafter, the District Court dismissed the action for failure to exhaust administrative remedies. “Specifically, the District Court held that because the gravamen of the complaint was the denial of a free appropriate public education (FAPE), [the parent’s] failure to exhaust the IDEA’s administrative remedies deprived the court of jurisdiction”. The District Court, however, provided the parent with the opportunity to amend the complaint but “to only address the exhaustion issue”. Subsequent to the amendment, the defendant filed another motion to dismiss. The Court dismissed the action and found that the parent “had not plausibly alleged that exhaustion would have been futile or should otherwise be excused”.

The parents appealed to the Second Circuit Court of Appeals. The Court of Appeals reversed the District Court. With respect to the dismissal of the parent’s ADA, Section 504, and Section 1983 damages claims, it first pointed out that the District Court had correctly determined the motion to dismiss based on the law at the time of the motion to dismiss and determination. More specifically, at the time of the District Court’s determination, the law “require[ed] exhaustion of claims premised on the denial of a FAPE even where such claims seek a remedy – such as compensatory damages – that the IDEA does not provide”. However, the Appeals Court also pointed out that during the course of the appeal, the Supreme Court “adopted a narrower view of the IDEA exhaustion requirement”.126 In particular, the Supreme Court decided that “claims seeking a form of relief that the IDEA does not provide, including compensatory and punitive damages, need not be exhausted, even if such claims seek to redress the denial of a FAPE”. Based on this, the Appeals Court held that the Supreme Court’s new interpretation of the law “had abrogated the District Court’s basis for dismissing [the parent’s] ADA, Section 504, and 1983 claims for damages. The defendants argued in the alternative that the parent’s complaint had failed to state a claim with respect to the damages claims. The Appeals Court “decline[d] to evaluate this argument as [the parent] had not had an opportunity to amend her complaint to correct any deficiencies in the pleading”. Based on this, the Appeals Court “vacate[d] the dismissal of [the parent’s] ADA, Section 504, and Section 1983 claims for damages and remand[ed] for further proceedings”.

With respect to the parent’s IDEA claim, the Appeals Court decided that the parent “was not required to exhaust her claim for [] relief against the district for breach of the settlement agreement”. The Appeals Court first pointed out that “Congress has expressly provided for enforcement of IDEA settlement agreements in federal district courts when the agreement at issue was entered into at a resolution session” provided by the IDEA. Upon review of the parent’s pleading, the Appeals Court found that the parent’s asserted IDEA claim arose both from the breach of a settlement agreement and as a result of a resolution session set out in the IDEA. As

126

See Luna Perez v. Sturgis Public Schools, 598 U.S. 142 (2023).

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a consequence, the Appeals Court reversed the District Court’s determination that the parent’s IDEA claim should barred for failure to exhaust administrative remedies.

Tobuck v. David Banks, 23 Civ. 1356 (LGS), 2024 WL 1349693 (S.D.N.Y. Mar. 2024) Issue: compensatory education, injunctive relief Dispute: Subsequent to an award of compensatory education by the IHO, which was not appealed, and after the expiration of the school year the student turned twenty-one, could the parent file a due process complaint notice asserting a violation of the IDEA and that the student was therefore eligible for another year of special education or was the parent required to file an action in court seeking to enforce the IHO’s order.

Conclusion: Subsequent to an award of compensatory education by the IHO, which was not appealed, and after the expiration of the school year the student turned twenty-one, the parent could not file a due process complaint notice asserting a violation of the IDEA and that the student was therefore eligible for another year of special education but the parent could seek to enforce the IHO’s order in court Key Take Away: Subsequent to the end of the school year in which a student turns twenty-one, the student has no further right to special education and procedural protections under the IDEA. The only way that a student can receive further special education is as a result of an award of compensatory education. If the school district does not provide that compensatory education, the parent may seek judicial relief to enforce the compensatory education award.

Reasoning: The student in this case is eligible for special education as a student with multiple disabilities and had his twenty-first birthday during the 2021-2022 school year.

The parent filed due process complaint notices in August 2020 and April 2021. In combination, the notices set forth that the district had failed to provide the student with a FAPE from the beginning of the 2018-2019 school year to the time of the administrative proceeding in 2021. On July 19, 2021, the IHO issued a decision finding that the district had denied the student a FAPE during the 2018-2019, 2019-2020, and 2020-2021 school years as it had committed “gross violations” of the IDEA. The IHO concluded that the student was eligible for compensatory education. The IHO also pointed out that as the student was turning twenty-one shortly, he would no longer be eligible for special education under the IDEA but that compensatory education was an equitable remedy “that may require a school district to fund a child’s education beyond their statutory eligibility”. The IHO additionally found that he was unable to determine the amount of compensatory education due the student as the record of the proceeding was not “sufficient”. The IHO therefore ordered an independent educational evaluation (IEE) “to determine what if any changes must be made to [the student’s] IEP as well as the extent of 570

compensatory education, he [was] to receive to be paid for by [the district” but subject to a maximum of three years. The IEE evaluator determined that “the student should remain in his current special education setting” at the private school for the maximum three-year period identified by the IHO. The district did not appeal.

The parent filed a further request for an impartial hearing on July 6, 2022, for the 2022-2023 school year. She asserted that the district had failed to provide the student with a FAPE, that the student’s private school was appropriate, and that equitable considerations were in favor of the student. As a result, she asserted that the student was eligible under the IDEA for funding for the 2022-2023 school year. The IHO dismissed the parent’s complaint with prejudice. She held that she “lacked jurisdiction and authority to do so” under the IDEA as the student was over twenty-one years of age. She advised that the student had a separate and “non-convergent” remedy for prospective compensatory relief and that this originated from the IHO’s July 2021 order. This being the case, the IHO indicated that the parent had sought “the wrong relief in the wrong forum.” She added that the student’s “proper remedy for non-compliance would be to attempt to seek enforcement” of the October 2021 order “instead of filing a due process complaint [] in another forum as an IHO does not have the power … to enforce an earlier order of an impartial hearing officer”.

The parent appealed the IHO’s order to the Office of State Review (OSR). An SRO upheld the IHO’s decision and order in all respects. The SRO “distinguished between an equitable award of compensatory education … and an award of extended eligibility, which extends the school district’s IDEA statutory obligation to a student”. The SRO held that the July 2021 order provided the student with an equitable award of compensatory education and not an award of extended eligibility to special education under the IDEA. Among other things, the SRO indicated “that the proper forum for [the parent] to enforce the [July 2021] compensatory education award [was] in court, stating that “neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers”.

The parent filed suit against the district on February 16, 2023 “seeking to reverse the SRO’s decision and grant funding for [the student’s] placement at [the private school] that the student attended during the 2022-2023 school year”. That suit did not seek the enforcement of the July 2021 order.

In its decision, the Court first “adopt[ed] the SRO’s determination that the IDEA’s statutory rights, and procedural mechanisms to enforce them, are distinct from equitable rights created by a compensatory award and its enforcement”. The Court further quoted the SRO’s decision that “compensatory education is not a full extension of the IDEA itself…. Instead, enforcement of a compensatory education award would need to proceed in a forum with authority to enforce the IHO’s decision, and neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers”. The Court agreed with the SRO that it “made sense” as “to do otherwise could result in potentially perpetual challenges to IEPs developed during the period of 571

extension and additional awards of compensatory education which could result in many more years of eligibility than intended”.

Consistent with the above, the Court concluded that “the IDEA grants the right to a FAPE to students through the age of 21. See 20 U.S.C. 1412(a)(1). New York law provides for IDEA eligibility through the end of the school year in which a student turns twenty-one. See N.Y. Educ.

Law 4402(5).” The Court then pointed out that the school year in which this student turned twenty-one was the 2021-2022 school year and “[t]herefore the IDEA no longer provides him the right to a FAPE and related statutory benefits for the 2022-2023 school year”.

Regarding the parent’s argument that the July 2021 order “extended the student’s right to a FAPE – and the benefits that flow from it under the IDEA – beyond age twenty-one”, the Court disagreed and, consistent with the above, concluded that the order “directed the creation of an IEE and that [the student’s] year(s) of compensatory education to be determined and implemented according to that IEE”. The Court continued that “[b]ecause the IHO’s decision did not extend the student’s statutory right to a FAPE beyond age twenty-one, the parent could not file a due process complaint alleging failure to provide a FAPE as [the parent] attempted to do here".

However, in light of the parent’s inability to obtain redress through the IDEA, her right to enforce the July 2021 order in court, the lack of a dispute that the July 2021 order granted the student a right to an award of compensatory education pursuant to the IEE, the Court granted the parent leave to amend the complaint to seek enforcement of the July 2021 order and to receive compensatory education as an appropriate form of equitable relief.

L.G. et al. v. New York City Dep’t of Educ., 23-CV-9268 (JPO), 2023 WL 8044937 (S.D.N.Y. Nov. 3, 2023) Dispute: Whether, in circumstances where the district is unable to identify a specific placement agreed upon in the IEP, the parents file a due process complaint notice on the basis thereof, and where the parent enrolls the student in an appropriate private placement, the district may be enjoined under the principles of pendency and IDEA’s provisions for equitable relief to continue to make payments to the private school pending the district’s satisfaction with the placement set forth in the IEP or during the pendency of the due process complaint process.

Conclusion: The Court concluded that, in circumstances where the district is unable to identify a specific placement agreed upon in the IEP, the parents file a due process complaint notice on the basis thereof, and where the parent enrolls the student in an appropriate private placement, the district may be enjoined under the principles of pendency and IDEA’s provisions for equitable relief to continue to make payments to the private school pending the district’s satisfaction with the placement set forth in the IEP or during the pendency of the due process complaint process.

Basis of the Court’s Decision: 572

The student is classified as a student with an emotional disturbance and has received special education services.

The district’s CSE met on June 15, 2023. At that time, all parties agreed that the student’s appropriate placement was a 12-month placement in a residential non-public school. However, the CSE was unable to find such a placement for the child. It therefore recommended that the student attend a public high school that served both students with disabilities and students without disabilities and which was not a residential school. The parent’s disagreed with this placement and unilaterally placed the student in a non-pubic residential school.

The parents filed a due process complaint notice asserting that the district had failed to find an appropriate placement for the student. Under the circumstances, the parents asserted that the principles of pendency placement and injunctive relief under the IDEA assured the student a right to attend the private school he was attending on a monthly basis during the pendency of the due process complaint process or until the district provided the student with a “suitable” residential placement as set forth in his IEP. Pending “before the Court [was] the [p]laintiffs [request for injunctive relief] to order the district to fund [the student’s] placement at [the private school] on a monthly basis during the pendency of the due process proceedings or until [the district] provides [the student] with another suitable residential placement as specified in [the student’s] IEP”.

Putting aside pendency, the Court advised that to secure injunctive relief the “[p]laintiffs must show (1) a likelihood of success on the merits, (2) that the plaintiffs are likely to suffer irreparable injury in the absence of an injunction, (3) that the balance of hardships tips in the plaintiffs’ favor, and (4) that the public interest would not be disserved by the issuance of the injunction”.

With respect to the parents’ initial assertion that the student had a right to continue to attend his private residential placement on a monthly basis as a pendency placement, the district claimed that the claim was barred by the doctrine of the failure to exhaust administrative remedies and cited to Second Circuit caselaw at Ventura de Paulino, 959 F.3d 519, 530 (2d Cir 2020).

The Court disagreed and explained that “when an action alleges a violation of the stay-put provision, such action falls within one, if not more, of the enumerated exceptions to the IDEA’s exhaustion requirement. See de Paulino, 959 F.3d at 531. The Court therefore rejected the district’s argument.

With respect to the parent’s claim that the stay-put provision at 20 U.S.C. Section 1415(j) provides authority for the Court to order the requested injunctive relief, the Court explained that the stay-put “provision operates as an injunction that keeps the student in the then current educational placement” and further, that the “then current educational placement … typically refers to the child’s last agreed-upon program before the parent requested a due process hearing”. With this in mind, the Court found that the student’s pendency placement was “the 573

June 15, 2023 IEP’s recommendation of a non-public residential placement …” the placement which both the parents and the district had agreed was appropriate for the student.

The district asserted that the Second Circuit’s de Paulino decision “foreclose[d]” the student’s ability to attend the private residential school. The Court disagreed. It first explained that the Second Circuit’s holding in de Paulino was that the parent and the district cannot agree “that the student’s educational program would be provided by one school”, that the parent cannot then “determine that the child’s pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school’s services on a pendency basis.” This was not the case here the Court said. And therefore, de Paulino does not strictly apply. However, and importantly, the Court pointed to dicta in de Paulino that specifically stated that the Second Circuit there “was not considering any question presented where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child”. de Paulino, 959 F.3d at 534 n.65. The Court further pointed out that the Second Circuit in de Paulino “noted that under certain extraordinary circumstances not presented in [that case], a parent may seek injunctive relief to modify a student’s placement pursuant to [IDEA’s] equitable authority provided in 20 U.S.C. 1415(i)(2)(B)(iii)” and there cited to a case that “involved a situation in which the pendency placement was no longer available and the school district had failed to propose an alternative, equivalent placement”. See Wagner v. Bd. of Educ. of Montgomery Cty., 335 F.3d 297, 302-03 (4th Cir. 2003).

The Court then considered the extent to which the case at hand involved the “extraordinary circumstances” referenced in de Paulino and “whether a preliminary injunction [could] be issued in this case based on the [IDEA’s] equitable remedial powers at 20 U.S.C. Section 1415(i)(2)(B)(iii)” and under the criteria for injunctive relief set out above.

Upon review, the Court decided that the case fell “precisely into the category of extraordinary cases the Second Circuit identified in Ventura de Paulino as appropriate for injunctive relief…”.

As indicated above, it pointed to the fact that “[n]one of the residential program schools that would have served as [the student’s] pendency placement [was] available and the school district I [had] failed to propose an alternative equivalent placement”. The Court also pointed out that based on the information before it, the student’s private residential school would “serve the student in accordance with [his] IEP” and that the district “had previously been ordered to fund [the private school] as a residential educational placement pursuant to the IDEA”. This being said, the Court concluded that the parents “have shown a likelihood of success on the merits”.

The Court also concluded that “in the absence of a preliminary injunction [p]laintiffs will suffer actual and imminent harm”. Regarding this, the Court pointed to the fact that the family’s income precluded their continuing ability to pay for the private school and that the private school had advised the parents that unless payment was received immediately or an injunction issued, the student would not be able to remain.

574

The Court also found that the “balance of the equities” favored the plaintiffs “and that a preliminary injunction would serve the public interest”. Regarding this, the Court pointed to the facts that the district has “failed to provide a pendency placement that satisfies [the student’s] IEP, has offered the [p]laintiffs only a pendency placement that violates [the student’s] IEP and has given no indication of when it will offer a pendency placement that satisfies [the student’s] IEP. With all of the above in mind, the Court granted plaintiff’s motion for a temporary restraining order and preliminary injunction.

Mendez v. Banks, No. 22-2663, 2023 WL 2903360 (2d Cir. Apr. 12, 2023) Dispute: Whether the stay-put provision of the IDEA entitles parents to an automatic injunction directing a district to fund their children’s pendency placements.

Conclusion: The Second Circuit upheld the District Court and determined that in the circumstances of this case, the stay-put provision of the IDEA did not entitle parents to an automatic injunction directing a district to fund their children’s pendency placements.

Basis of the Second Circuit Court’s Decision: This case involves five students who have pendency orders in place to attend a private school.

The parents have sought a preliminary injunction or an enforcement of pendency as well as an order requiring the district to “immediately implement each [s]tudent’s [p]endency [o]rder, by funding the [s]tudent’s tuitions and related services…for the 2022-23 extended school year”. “[T]he [D]istrict [C]ourt denied [the parents’] request for a preliminary injunction…”. In the first place, the District Court reasoned that the parents “were unable to show irreparable harm arising from the [district’s] alleged failure to pay”. Second, the District Court “rejected [the parents’] argument that the IDEA’s stay-put provision, 20 U.S.C. 1415j, entitles them to an automatic preliminary injunction, reasoning that the provision pertains to educational placement, not funding”. The Second Circuit affirmed the judgement of the District Court.

With respect to the second argument, about the stay-put provision itself, the Second Circuit explained that “the IDEA’s stay-put provision entitles children with disabilities to remain in their then-current educational placement at public expense during the pendency of any proceedings.

This provision seeks to maintain the educational status quo while the parties’ dispute is being resolved”. The Second Circuit went on to say that it has “characterized [the IDEA’s pendency provision] as in effect an automatic preliminary injunction, given that it substitutes an absolute rule in favor of the status quo – that is, the maintenance of a student’s then-current educational placement – for the standard preliminary injunction analysis …”

The parents “contend that [because of pendency], there is no requirement to show irreparable harm in order to obtain an order requiring the [district] to immediately fund the educational placements for the 2022-23 school year”. The Second Circuit said that just because the district is “obligated to fund their children’s educational placement for the duration of the proceedings, 575

that does not mean that [the pendency provision] requires the [district] to automatically fasttrack funding for the educational placements”. The Second Circuit agreed with prior precedent (see Abrams v. Porter, No. 20-3899-cv, 2021 WL 5829762 (2d Cir. Dec. 9, 2021) “that the IDEA’s stay-put provision does not create an entitlement to immediate payment or reimbursement.

Parents or guardians may still be able to obtain such relief if they establish that a delay or failure to pay has jeopardized their child’s educational placement. But, absent such a showing, the [district] is not obligated to circumvent its ordinary payment procedures”. The Court said here that “this comports with the practical realities of bureaucratic administration”. Relative to this, given the numbers of children and the amount of monies involved, the Second Circuit said that “[a]ny agency will need some amount of time to process and pay submitted invoices. If such pendency order entitled parents or guardians to immediate payment, school districts would be unable to implement basic budgetary oversight measures, such as requiring receipts before reimbursement”.

With regard to traditional injunctive relief, the District Court “reasoned” that the parents were not able to show irreparable harm. Regarding this, in order “[t]o obtain a preliminary injunction, [under the traditional standard] plaintiffs must show (1) a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiffs’ favor, (2) that they are likely to suffer irreparable injury in the absence of an injunction, (3) that the balance of hardships tips in their favor, and (4) that the public interest would not be disserved by the issuance of a preliminary injunction”. Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010).

The Second Circuit pointed out that here “[the parents] effectively conceded that they would not suffer irreparable harm in their motion for expedited briefing”. This because the private school “has allowed the [s]tudents to remain in the school”. Further, “[i]nstead of arguing that their children’s pendency placements are at risk, [the parents] allege that they and their children have suffered irreparable harm in the form of a violation of the procedural rights afforded to them under the stay-put provision”. However, the Court said that the stay-put provision “does not create a procedural right to immediate payment, at least not absent a showing that a child’s placement will be put at risk” – something that is not at issue here.

Y.S. v. New York City Bd. of Educ., No. 1:21-cv-00711 (MKV), 2021 WL 1164571 (S.D.N.Y. Mar. 26, 2021) Dispute: Parent sought injunctive relief to implement that part of an IHO’s decision, which provided that the district would enroll the student in an appropriate state-approved nonpublic school within 30 days. The district opposed the requested relief.

Conclusion: The Court ordered the district to implement within 30 days that part of the IHO’s order, which provided for the district to enroll the student in an appropriate state-approved nonpublic school.

576

Basis of the Court’s Decision: The parent requested an impartial hearing in June 2019, on the basis that the district had denied the student a FAPE for three years. On February 17, 2020, the IHO issued an order favoring the student. Among other things, the IHO’s order provided for the district to enroll the student in an appropriate state-approved nonpublic school within 30 days.

After jockeying by the parties regarding compliance with the IHO’s order, the parent filed an action in federal court in January 2021 regarding the student’s rights under the IDEA. Subsequently, the parent sought a hearing on the request for injunctive relief relative to that part of the IHO’s order regarding the student’s placement in an appropriate state-approved nonpublic school.

The Court held that in order to obtain a preliminary injunction the parent must show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the parent’s favor, and that an injunction is in the public interest. Since the injunctive relief would also arguably “modify the status quo”, the Court also held that the showing of irreparable harm must be “strong” and that there must be a determination that the success on the merits be “clear and substantial”.

The Court found that the parent had made both a strong showing of irreparable harm absent the intervention of the court and of success on the merits. The Court held that the denial of an appropriate placement, the failure to provide a FAPE during the previous three years, and the district’s continuing failure to comply with the IHO’s order was sufficient to show that the student would suffer irreparable harm absent the intervention of the Court. Regarding the merits of the parent’s claim, the Court held that this was an “easy” threshold to satisfy as the IHO’s determination was final and binding and the district had admitted that it had not complied with the IHO’s order that the student be placed in a state-approved nonpublic school. Regarding whether an injunction was in the public interest the court advised that the public interest is “best served” by ensuring the upholding of constitutional and civil rights such as the IDEA after a showing of the likelihood of success on the merits. Regarding equities, the court held that while the student would suffer harm from continuing placement delays the district would suffer none.

The possibility, the Court said, of the district facing a “marginal increase in cost” in the event that the student was required to be placed at a nonpublic school was “of no moment” because the district admitted that the IHO’s order provided that it would bear such costs if the district were not able to find an appropriate public placement.

EMC v. Ventura Unified Sch. Dist., Case No. 2:20-cv-09024-SVW-PD, 2020 WL 7094071 (C.D. Cal. Oct. 14, 2020) Dispute: Whether, in the context of a request for injunctive relief in an appeal of an adverse stay-put finding by a state administrative agency, a Court would order in-person services Conclusion: The Court held that the parents’ request for injunctive relief for in-person services should be denied.

577

Basis of the Court’s Decision: The school district moved to online learning on March 16, 2020.

The California Department of Education issued guidance on April 9, 2020, that IEP services may be provided in-person notwithstanding public health restrictions only in “exceptional situations” after an “individualized determination.” The student’s May 7, 2020, IEP provided for 29.5 hours of “intensive individualized services” (IIS) a week. On August 18, the district provided the student with an on-line learning plan. On September 9, 2020, the parents filed a complaint with the state administrative agency alleging that the district violated the student’s rights under IDEA. On September 11, 2020, the parents filed a motion asserting that the student’s pendency placement required the district to provide IIS in-person. On September 22, the administrative agency denied parents’ requested stay-put relief. Parents then sought injunctive relief asserting that the student’s IIS should be provided in-person pending the determination of the state administrative agency.

The Court held that the parents’ request did not demonstrate a likelihood of success on the merits. The court reasoned that the student’s May 7, 2020 IEP, which was the “last implemented IEP,” did not expressly require that IIS be provided in person” and that, contrary to what was required by state guidance, the IEP did not include an individualized determination that exceptional circumstances required in-person services. Under such circumstances, the Court held that a decision of what the IEP required would be a “merits” question, which should not be prematurely addressed. Even if the IEP did require in-person services, the Court held that such was preempted by statewide public health restrictions and the requirement that such be accompanied by an individualized determination that such supports were needed.

The Court also held that the parents did not show the likelihood of irreparable harm as the assessments in evidence did not persuasively show that the student would be irreparably harmed or that such harm would materialize before the administrative decision. The Court found here that the evidence presented by plaintiffs’ witnesses were conclusory, failed to state that the student’s declines were likely to be irreparable and were otherwise insufficient. Further, even if the evidence had shown that prolonged distance learning could cause irreparable harm, there was no evidence showing the “likely duration “of in-person learning restrictions. The Court also found that the balance of the equities/public interest supported the district in that the evidence only showed a “temporary” period of “serious difficulties” on the part of the student as opposed to the strong public health interest attached to the district’s position.

Payment for Pendency Services: Abrams et al. v. Carranza, et al. 2020 WL 6048785 (S.D.N.Y. Oct. 13, 2020) Dispute: Plaintiff students at the International Institute for the Brain (iBrain) seek injunctive relief for payment of certain services associated with their pendency placements. The district argues that injunctive relief is not appropriate.

Conclusion: The Court held that plaintiff students were not entitled to injunctive relief for payments for such services.

578

Basis of the Court’s Decision: In the circumstances here where there is no dispute over students’ pendency placement or where the payment for pendency services does not directly threaten the students’ pendency placements, pendency’s “automatic injunction” under Zvi. D. v. Ambach, 694F.2d 914 (2d Cir. 1982) does not apply. Likewise, in circumstances where there is no threat to the students’ pendency placement or an imminent threat to the provision of the pendency services, injunctive relief is not appropriate, as the “irreparable injury” requirement does not apply. Relating to this, the Court pointed out that there was an adequate remedy at law; which in this case was the suit underlying the students’ request for relief.

Pendency Placement: Arelis Araujo et al. v. New York City Dep’t of Educ., 20 CIV 7032 (LGS) (SDNY Sept. 24, 2020) Dispute: Plaintiff parents move for a preliminary injunction and temporary restraining order alleging violations of the pendency rights of 33 students at the International Institute for the Brain (iBRAIN). The district argues that 20 of that number were not entitled to pendency placement and that for the 13 others, interim relief was not appropriate.

Conclusion: The court held that 13 of the 33 students were entitled to pendency funding at iBRAIN and that immediate relief was appropriate.

Basis of the SRO’s Decision: The Court reported that there was no dispute that 13 of the students had pendency at iBRAIN and that the only dispute was whether interim relief was appropriate.

The district argued that interim relief was not appropriate because the students had not submitted required information to the district. The district also argued that the traditional considerations relating to injunctive relief militated against irreparable injury as the educational placement of these students was not threatened. The plaintiffs argued that “the stay-put provision” acted as an ‘automatic injunction’ in accordance with Ventura de Paulino v. New York City Department of Education, 959 F.3d 519, 529 (2d Cir. 2020); Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The Court rejected the district’s’ arguments.

With respect to 15 of the remaining students, the plaintiffs claim that such “students are entitled to pendency placement by virtue of the fact that iBRAIN was the students “operative placement” (see Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]). The Court disagreed and held that these students were not entitled to pendency placement at iBRAIN because the plaintiffs had not established that their enrollment at iBRAIN was agreed upon between their parents and the district. The Court also concluded that if the plaintiffs were arguing that “no timely pendency determination [had] been made, then [the plaintiffs] can petition to obtain such relief.” The Court stressed that what the plaintiffs cannot do was to “unilaterally alter the students’ enrollments and then claim pendency on that basis.”

With respect to the last 5 students, the plaintiffs again argued that they were denied their pendency rights under the “operative placement” doctrine. The Court dismissed the argument and advised that “the parents could not choose to place the students at iBRAIN unilaterally, 579

without input from [the school district], and then recover the costs of such placement” under pendency, which is what they were suggesting.

PROSPECTIVE RELIEF Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) Dispute: Was the parent’s request for prospective relief – referral to the CBST for a nonpublic placement -- appropriate.

Conclusion: The SRO concluded that the parent’s request for prospective relief – deferral to the CBST for a nonpublic placement – was inappropriate as it had the effect of circumventing the IDEA’s statutory process.

Basis of the SRO’s Decision: The parent’s due process complaint notice identified a number of specific and discrete areas in which the parent asserted that the student’s 2019-20 and 2020-21 IEPs were inadequate. Based on this, the parent requested, among other things, prospective relief and in particular a deferral to the CBST for a recommendation of an appropriate nonpublic school placement.

With respect to the parent’s request for prospective relief and in particular for a deferral to the CBST for placement in a nonpublic school, the SRO pointed out that such relief is “generally disfavored because it has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs”. The SRO further pointed out that “the two school years at issue -- 2019-20 and 2020-21 -- have ended, and in accordance with its obligation to review a student’s IEP at least annually, the CSE should have already convened to produce an IEP for the 2021-22 school year” and that therefore “the more appropriate course is to limit review … to remediation of past harms that have been explored through the development of the underlying hearing record”.

K.O. v. New York City Dep’t of Educ., 20-cv-10277 (LJL), 2022 WL 1689760 (S.D.N.Y. May 26, 2022) Dispute: Should the Court order prospective equitable relief.

Conclusion: The Court determined that prospective equitable relief was not appropriate here.

Basis of the Court’s Decision: In this case, the parent requested establishing “one or more systems ensuring timely payment of the [district’s] obligations for pendency and under [IHO decisions] and ensuring timely appointment of IHO’s.

The Court concluded that it had the authority to order prospective equitable relief “where a child has not received the educational services the child should have received in the first place” (Doe v. East Lyme Bd. Of Educ., 962 F. 3d 649, 659 [2d 2020]). “In this case the Court said that “after the due process hearings, [the student] did receive the educational services ordered in the [IHO 580

decisions] and, while the parent paid $ 50 towards the cost of her child’s education, that sum has been reimbursed, and the Court was not necessary for [the parent] to receive any of the other relief to which she was entitled. The Court held that “[a]ccordingly, no basis appears on the record to order” the district to exercise its power to order prospective equitable relief.

Impact of COVID-19: Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request.

Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”.

Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding.

Least Restrictive Environment: Application of a Student with A disability, Appeal No. 20-083 (June 26, 2020) Dispute: The parent requests an order directing the district to identify and secure an appropriate day program consistent with the recommendations of the psychiatric evaluation and FBA already ordered by the IHO Conclusion: The SRO concluded that prospective relief should not be granted.

Basis of the SRO’s Decision: The SRO concluded that “under certain circumstances” an award of prospective relief “circumvents the statutory process” regarding the CSE’s responsibilities. In this case, the SRO pointed out that the 2019-20 school year had “essentially been almost completed” and that the CSE should have met to develop the student’s program for the 2020-21 school year.

Further, the SRO indicated that the CSE should have before it additional evaluations, including the results of an independent FBA and of an independent psychiatric evaluation ordered by the IHO and not challenged on appeal to the SRO. Since the IHO also ordered that the CSE should meet “within 15 days of receiving the evaluations,” the SRO indicated that the district “should be moving forward with having [the evaluations] completed”. The SRO added that when the CSE 581

reconvenes it will have additional information and that at that time it “should have the first attempt to determine the placement of the student along the continuum of services, assessing the extent to which the student can be educated with nondisabled peers in a public setting before considering more restrictive nonpublic school options” The SRO said that the case was “not one of those few cases” where prospective relief might be appropriate and indicated that one would be “where both the school district and the parent agreed that the child’s unique needs required placement in a private non-approved school and that there were no approved schools that would be appropriate”.

The SRO stressed that the CSE should “reconvene”, “consider the additional evaluations” and also consider “all other non-residential possibilities” before determining whether the student needed to be in a residential program. To do “[a]nything less would eliminate the important statutory purpose of attempting, wherever possible to have disabled student meaningfully access the public school system each year by first attempting placement in a public school”. After it reconvened, reviewed the additional evaluations and reached its recommendations, the SRO ordered the district to provide the parent with “prior written notice” “specifically indicating whether the CSE recommended or refused to recommend” residential services on the student’s IEP and “explaining the basis for the CSE’s recommendation” and “describing the evaluative information relied upon in reaching these determinations” The SRO stressed again that “the CSE must consider whether the student can be successfully placed in a non-residential program”.

If the parent did not agree with the CSE’s recommendation for the 2020-21 school year, the SRO indicated that the parent “may obtain relief by challenging the district’s determinations regarding that school year at that time”.

Application of the New York City Department of Education, 20-108 (8/10/2020) Dispute: The parent, on a prospective basis, requests one year of placement in a non-public school and 10 hours a week of at-home ABA. The district opposes the parent’s request.

Conclusion: The SRO denied the parent’s request for prospective placement in a nonpublic school and 10 hours of at-home ABA. Basis of the SRO’s Decision: According to the SRO, among other things, “by the time the IHO had issued his decision on May 11, 2020 almost eight months had passed, (and) the 2019-20 school year had effectively ended due to the (COVID-19) pandemic forcing the closure of schools”.

Further, the SRO noted that pursuant to 8 NYCRR § 279.10(b) the SRO had verified a December 2019 IEP and multiple assessments with respect thereto which had not been a part of the hearing record and which were not before the IHO. That being the case, the SRO held that the prospective relief requested by the parent was inappropriate as “the IEPs challenged in the matter [were] no longer in effect and the CSE [had] already convened to consider new evaluative information”. “(U)nder such circumstances” the SRO believed that “rather than awarding prospective relief” it was more appropriate to limit review “to (the) remediation of past harms that (were) explored” by the hearing record in the case at hand. The SRO advised that should 582

the parent object to the December 2019 IEP or any subsequent IEP, the parent could challenge that subsequent IEP in a separate proceeding.

REMAND Issue: Remand

Thomas v. Aviles-Ramos, 24-CV-3904 (JPO), 2025 WL 1267446 (S.D.N.Y. Apr. 30, 2025)

Dispute: Should the case be remanded (sent back) to the IHO for clarification.

Conclusion: The District Court determined that the matter should be sent back to the IHO for clarification.

Key Take Away: Parents should remember that if terms of an IHO’s order are “ambiguous,” it is appropriate that the matter be sent back to the IHO for clarification.

Reasoning: At the time of the IHO decision, the student was 16 years old with Dandy-Walker syndrome.

After a due process complaint and an impartial hearing, the impartial hearing officer (IHO) determined that the district had failed to provide the student with a FAPE, that the parents’ private placement was appropriate, and that equitable considerations favored the parents.

The IHO’s final order of fact and decision (FOFD) included an award to the parents of “the cost of transporting [the student] to and from [the private school]” for the school year. The transportation provider’s written agreement with the parents, which was a part of the impartial hearing, stated that each morning and afternoon trip “will be billed” at a flat rate and that such costs “will be based on school days, whether student used services or not”.

The district interpreted the IHO’s order to mean that it was responsible to pay for only those days that the student attended school. The parents argued that the IHO’s order meant that the district was responsible for paying the student’s transportation costs for each school day regardless of whether the student attended school. As a result of this dispute, the district has refused to pay the transportation provider and the “balance due” by the district to the transportation provider was more than $90,000.

The parents began an “enforcement” proceeding in federal court in May 2024 in support of its position that the district was responsible to pay the transportation provider for the cost of transporting the student to school on each school day and regardless of whether the student attended on a particular day. As it had before, the district asked the District Court to award transportation payments for every day that the student actually attended school. Both parties asked the District Court to rule in their favor.

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The parent agued first that both the IDEA and “controlling case law” required the district to pay for transportation whether or not the transportation services were actually provided. The District Court decided that the IDEA does not necessarily require this outcome but only that the district “fund adequate transportation to ensure that a student gets to and from school”. The District Court then said if the provider’s contract is “consistent with industry norms” and the parents had no meaningful choice but to contract to pay for services without regard to whether students utilized the service, the IDEA would require the district to fund that transportation. The District Court continued on to say that “if there is an alternative to [] the model that permits [the district] to fund transportation on only the specific days [the student] actually goes to the private school, that service would also satisfy IDEA’s requirements”. The District Court said that in this event “it would be reasonable and fiscally responsible for [the district] to demand such a tailored service if it exists”.

The District Court also reviewed the case law provided by the parents. It determined that this did “not suggest” that the IDEA always allows transportation costs to be paid regardless of a student’s actual use of the service. The District Court concluded that “[u]ltimately, whether or not the district has provided [the student] adequate transportation hinges upon factual determinations”. In particular, the District Court said that the “fact finder must determine whether it is possible for [the student] to find adequate transportation that operates on a perride payment or whether the market in New York City is confined to transportation services with flat fees”. The District Court went on to say that this meant that the question was whether or not the district’s “requirement of a per-ride payment would effectively prevent [the student] from getting transportation to [the private school]”. The District Court concluded that the IHO was “best equipped to pursue further fact finding and [sent the claim back] to the IHO to pursue further fact finding.

The District Court also considered the language of the FOFD itself and reached the same conclusion. The District Court pointed out that the IHO ordered the district “to fund the costs of transporting the [s]tudent to and from the private school” during the school year. The District Court also pointed out that the FOFD did not provide any further information. Both the district and the parents argued that such an absence of additional information should be read in their favor. The district also argued that if the District Court considered the FOFD to be “ambiguous”, then the matter should be sent back to the IHO for clarification.

The District Court reviewed two other court cases with the same transportation language, which was, to fund “the costs of transporting [the student] to and from [the private school]”. The District Court pointed out that both meanings of the term were plausible” and that without context or explanation from the order, the order itself provided no clear meaning of what it meant. The District Court pointed out that in these other court cases, the judges had found the language “ambiguous” and had sent the matter back to the IHOs for clarification. The District Court found that appropriate and agreed with that outcome.

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Finally, the parents also argued that one of the District Court’s own decisions supported their contention that the language of the order meant that the district should pay transportation costs even if the student did not travel to the private school on a particular day. The District Court concluded that there were “key differences” between that case and the situation here.

The District Court concluded that the matter should be sent back to the IHO for clarification.

B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) Issue: Remedies -- remand Dispute: Was it appropriate to remand the case to the SRO Conclusion: The District Court decided that it was not appropriate to remand the case (refer the case back) to the SRO. Key Take Away: The District Court will not remand the matter (refer the case back) to the SRO where an IHO has provided “a thoughtful opinion on the merits” providing the District Court with sufficient information to issue a ruling.

Reasoning: The student has a significant history of complex psychiatric problems. He receives special education services as a student with an emotional disturbance.

The CSE met in June 2021, to develop the student’s IEP for the 2021-2022 school year.

The parent disagreed with the IEP. The next day the parent told the district that she intended to continue the student’s placement at a private school for the 12-month school year beginning summer 2021 and would seek tuition reimbursement.

In July 2021, the parent requested an impartial hearing asserting “procedural and substantive” challenges to the June 2021 IEP. The CSE met again in October 2021. The parent again disagreed and filed an amended due process complaint.

The IHO decided that the district did not provide the student with a FAPE. She also decided that the student’s private school placement was appropriate. Finally, she decided that equitable considerations supported the parent’s request for tuition reimbursement and granted that request.

The district appealed to the SRO. The SRO decided that the district offered the student a FAPE and did not reach the appropriateness of the student’s private placement or equitable considerations.

The parent challenged the SRO’s decision in the United States District Court for the Eastern District of New York. Both parties asked the District Court to rule in their favor.

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The District Court decided that the district did not provide the student with a FAPE. The district asked the District Court to refer the questions of whether the student’s placement was appropriate and whether equitable considerations supported the parent’s request for tuition reimbursement back to the SRO for decision.

The district’s request relied on a legal case that said “only in rare circumstances should a court of appeals decide an issue usually placed in the hands of an agency”. The District Court pointed out that this case was an immigration-related matter where a circuit court made a factual determination on which the agency had not yet had a chance to consider.

The District Court pointed out that in an IDEA case “remand [referring the matter back] is appropriate where the district court has received insufficient guidance from state administrative agencies as to the merits of a case”. The District Court said that this case was different in that the IHO had provided “a thoughtful opinion on the merits of the case” providing sufficient information for the District Court to issue a ruling. It also pointed out that “other courts have reached the merits of IDEA cases in the absence of SRO decisions”.

The District Court decided that it was not appropriate to refer the case back to the SRO for decisions and proceeded to decide both questions on its own.

Issue: Remand

N.K.M. and M.M. v. Rye City Sch. Dist., No. 23-CV-1109, 2024 WL 4803941 (S.D.N.Y. Nov. 15, 2024)

Dispute: Did the student’s IEP adequately address his needs in math and did the IHO and SRO adequately discuss the student’s unilateral placement and equitable considerations.

Conclusion: The District Court concluded that the student’s math needs were not addressed in his 2021-2022 IEP, that the SRO did not consider the appropriateness of the student’s unilateral placement, and that the SRO did not have a full opportunity to review the district’s argument regarding equitable considerations. Therefore, the District Court remanded these issues to the SRO. Key Take Away: If the IHO and/or the SRO does not address the issues in the case, the District Court should send those issues back (“remand them”) to the SRO for consideration.

Reasoning: The student was in the sixth grade during the 2021-2022 school year.

In April 2021 the district met to develop the student’s IEP for the 2021-2022 school year. As a part of its review, district staff reported the results of the March 2021 educational evaluation and the results of certain Wechsler Achievement Tests, also in March 2021. The educational evaluation showed that the student had math scores in the low range. On the Wechsler Achievement Tests, the student was evaluated on five math standards. The student placed in the 12th percentile for 1, the first percentile for three, and the .1 percentile for another. The student’s composite math score was the 4th.percentile. The Woodcock Johnson test of 586

Achievement administered in December 2020 placed the student in the .1 percentile, the .1 percentile, and the .2 percentiles in the same three math standards. A December 2020 psychological examination set forth, among others, a diagnosis of a learning disorder in mathematics. A speech and language therapist reported at the CSE meeting that the student had “weaknesses in math”.

As a part of its program, the CSE recommended one forty-minute session per day of “ICT” services in language arts, math, social studies, and science and forty minutes daily in an educational support class. An ICT classroom has both students with disabilities and nondisabled students. At a maximum, the class has no more than 12 students with disabilities and, at a minimum, a special education teacher and a general education teacher. The educational support class included 15 students and covered all subject areas.

Upon their review of the student’s IEP, the parents decided to enroll him in Windward, a private school.

The parents filed a due process complaint in August 2021. The complaint claimed that the IEP was, among other things “substantively inappropriate” and that it “failed to adequately address” the student’s needs. The parents also argued that Windward was appropriate for the student’s needs and that equitable considerations supported the parents’ request for tuition reimbursement. On this basis the parents requested tuition and the cost of transportation. It should be pointed out that as part of its case before the Impartial Hearing Officer (IHO), the district explained that the student’s math needs were at a kindergarten or first grade level.

With no discussion about the student’s specific math needs, the IHO decided that the 2021-2022 IEP did not provide the student a Free Appropriate Public Education (FAPE). The IHO also decided that the student’s placement at Windward was appropriate to his needs and that equitable considerations supported tuition reimbursement to the parents. As a result, the IHO concluded that the parents should be provided tuition reimbursement and the cost of transportation for the 2021-2022 school year.

The district appealed the IHO’s decision to a State Review Officer (SRO). The SRO disagreed with the IHO and concluded that the district’s program did provide the student with a FAPE. In its decision, the SRO did not address the parents’ argument that the district had not acknowledged the student’s significant deficits in math and had not explained how the recommended program would address those deficits.

The parents went to federal court in February 2023 seeking to overturn the SRO’s decision. As part of its argument that the district did not provide the student a FAPE, the parents contended that the IEP “did not properly address [the student’s] math deficits and his need for intensive remediation in that subject”. The parents also claimed that the district did not show how a student at approximately the first-grade level in math could function in a sixth-grade math class with general education students.

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The District Court agreed with the parents’ contentions. It pointed to the student’s extremely low math testing scores and his grade level in math. The District Court concluded that the facts did not show how the extra attention that the special education teacher could give in the classroom and how the educational support class “would suffice” without additional remediation. The Court pointed to the special education teacher’s other responsibilities in addition to the student and also to the limited nature of the educational support class.

However, the District Court decided that even though the IHO had decided that the district did not provide the student with a FAPE, the IHO did not “separately analyze the adequacy of the IEP in addressing the student’s math goals”. Neither did the SRO, the Court pointed out.

The Court concluded that without analysis from the IHO or SRO on whether the IEP appropriately addressed the student’s math needs, there was no administrative decision to which the Court could rely on. The Court therefore concluded that because the matter “would benefit from the application of educational expertise” the question of the adequacy of the IEP and math should be sent back (“remanded”) to the SRO for consideration. Further, because the SRO did not take the opportunity to weigh in on whether Windward was an appropriate unilateral placement for the student and since this was also “a question that requires educational expertise”, she also remanded this question to the SRO. Finally, after considering the district’s appropriate arguments regarding equitable considerations and suggesting that the parents sandbagged the district by raising issues relating to equitable considerations that they had not raised at the CSE meeting, the district Court also remanded the question of equitable considerations to the SRO because of the SRO’s possible “power to persuade”.

Zimmerman v. Banks, 23-cv-9003 (JGK), 2024 WL 4882370, (S.D.N.Y. Nov. 25, 2024) Issue: IEP -- transportation Dispute: Whether an impartial hearing officer’s decision should be read as providing that the district pay for transportation to and from a private school, both for days that the student attended school and also for days that the student did not attend the private school.

Conclusion: The District Court determined that the decision’s meaning was unclear and remanded the matter to the impartial hearing officer to determine its meaning.

Key Take Away: If the meaning of an impartial hearing officer’s decision relating to the payment of transportation is unclear, it is appropriate to remand the matter to the impartial hearing officer for a determination of the decision’s meaning.

Reasoning: The student in this matter is six years of age and is receiving special education services as a child with a traumatic brain injury. The student is non-verbal and non-ambulatory and receives nutrition through a G-tube.

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The guardian of the student decided that the district could not meet the student’s needs and placed the student in a private school for the 2021-2022 and 2022-2023 school years. The student’s guardian also entered into a contract with a transportation company to provide the student with transportation from the student’s home to and from the private school.

The guardian of the student filed a due process complaint in October 2022. It claimed that the district did not provide a free appropriate public education to the student. The impartial hearing officer (IHO) agreed with this. The IHO also determined that the student’s private placement was appropriate for the student’s needs and that equitable considerations favored tuition reimbursement. Regarding the student’s request for transportation services, the IHO ordered that for the 2021-2022 school year the district pay the transportation company for all costs and fees for the student’s transportation to and from school at a rate not to exceed $320 per trip within 25 calendar days of the submission of copies of invoices for such services. For the 20222023 school year the “not to exceed rate” was $345 per trip.

In due course, a dispute arose over whether the district was to pay the transportation company both for days that the student attended school and also for days that the student did not attend the private school. At that time, the guardian filed a complaint in the United States District Court for the Southern District of New York and asked the judge to order the district to pay the transportation company for the entire school year.

The District Court considered the question. It decided that the language of the IHO’s order neither allowed for a broad reading that would require the district to pay for “any transportation costs” or “in accordance with the contract”, nor a narrow reading that would require reimbursement only for services “actually provided”. The District Court concluded that both the argument of the district and of the student’s guardian were plausible. Consistent with prior courts which had remanded the matter to the IHO for further consideration in such circumstances, the District Court remanded the matter to the IHO for a determination as to the meaning of the transportation language in the IHO’s decision.

Issue: Remand

Montalvan v. David Banks, 22 CIV 8541 (PAE), 2023 WL 8720296 (S.D.N.Y. Dec. 18, 2023)

Dispute: Whether it was appropriate for the Court to remand the matter to the SRO and perhaps the IHO. Conclusion: The Court found that it was appropriate to remand the matter to the SRO and perhaps the IHO in circumstances where the IHO’s decision was inconsistent with respect to whether the district had provided the student a FAPE and when the SRO did not reach that question.

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Key Take Away: It is appropriate for the court to remand (send the case back) to the SRO when it did not address the FAPE issue and when the IHO was inconsistent with whether the district had in fact denied the student a FAPE. Reasoning: The student in this case is nine years of age and “has autism, hypertonia and apraxia”. As a result of the COVID-19 pandemic, the student’s school was closed from March 15, 2020 through the end of that school year. The school therefore provided its student with remote instruction.

However, as a result of her disabilities, the student was unable to participate. Additionally, because of a lack of door-to-door transportation, even when the school “partially reopened in the summer to provide in-person therapy services”, the student “was unable to attend” except for two days. As a result of this inability to participate in the school’s educational program, her disability-related behaviors “deteriorated”. Things improved at the beginning of the next school year as the school went into a “blended learning model” of instruction where students attended a week on line and then the next week in-person. However, because of the “very strict closure and contract tracing rules” there were some months where the student attended school “as little as one or two days”. “Since February 2021, [] the student has been able to attend school inperson full time”. “[J]ust under a month after [the student’s] school closed”, the district held a virtual Committee on Special Education (CSE) meeting for the student. The resultant Individualized Education Program (IEP) recommended a 1:1 health paraprofessional in school, set goals for the student to meet during the next school year, placed the student in a “specialized class”, and provided for related services. The IEP further provided for special transportation and with extended school year programming. Except for a reference relating to the student’s speech-language therapy the IEP made no mention of remote instruction.

On August 14, 2020 the parent filed a due process complaint notice. The complaint asserted that (1) the district had “unilaterally, substantially, and materially” changed the student’s “status quo” program from a school classroom to her home and (2) the district “had failed to provide a FAPE since mid-March 2020”. As relief, among other things, the parent requested an interim order requiring the district to “immediately implement” the student’s IEP by reopening its school, an interim order that the district had denied the student a FAPE, and “a determination of appropriate compensatory services due to the denial of FAPE”.

After motion practice and decisions on interim matters, on February 24, 2022, the IHO issued a findings of fact and decision. She held, somewhat inconsistently, that (1) the district provided the student with a FAPE from March 2020 through the 2021-2021 school year but also that (2) the student “was entitled to compensatory education due to a denial of FAPE during the summer of 2020” and in an amount equal to the “classes and services [the student] was supposed to receive in summer 2020”.

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Both parties appealed the IHO’s decision to a State Review Officer (SRO.). Among other things, the SRO found that “to the extent that [the parent] claimed that the district’s failure to implement the student’s IEP, [the parent] had failed to properly exhaust her administrative remedies”. She cited COVID-19 specific guidance documents from the United States Department of Education and the New York State Education Department”. Based on that, she claimed that COVID-19 related “concerns regarding the student’s regression and compensatory education as to remote learning must be raised with the CSE in the first instance”. The SRO concluded that “because the IHO’s order alters the procedures that must be followed with regard to compensatory education services arising out of a change in the delivery of instruction during the COID-19 pandemic, it cannot be upheld”. Because of this, she reversed the IHO’s grant of compensatory services.

The parent filed a complaint in Federal Court on October 6, 2022 “seeking judicial review of the SRO’s decision”. In its decision, among other things, the Court pointed out the inconsistency in the IHO’s decision and the fact thar the SRO never reached a determination on whether the district’s actions denied the student a FAPE. Because of the above, the Court remanded the matter to the SRO “for further consideration, staying the action in the meantime”. In so doing the Cout noted “an apparently developing split among circuit courts as to whether district courts may remand for further proceedings before state education agencies”. However, and based on relevant second circuit opinion, the court found remand appropriate. As indicated above, the Court pointed out that the IHO’s decision regarding whether the district had provided a FAPE to the student during the entirety of the period March 2020 through the end of the school year was inconsistent and the fact that the SRO did not reach the question of whether the district had denied the student a FAPE from March 2020 to the end of the 2021-2022 school year. In support of his decision the Court set forth that “it would be imprudent for [the] Court, without any educational expertise, to decide the merits of [the student’s] claim on a cold record”.

The Court further said that “[o]n remand” he expected the SRO “to give focused attention to [the parent’s] claim that the [district’s] implementation of [the student’s] IEP during the COVID-19 period was not equal to the task of satisfactorily educating [the student}.The Court here pointed out that “[t]he [district][sic] has recognized in its guidance documents the enduring nature of a school’s duty to provide a disabled child a FAPE” and in particular, the guidance that “although students are not automatically entitled to compensatory services due to remote instruction, students whose needs are so complex that they were not able to participate in or benefit from special education programs are entitled to the compensatory services that may be necessary to address a loss of skills”. The Court further stated that it “expects the SRO to address [the parent’s] claims sensitive to the developing caselaw … involving claims of FAPE denials during the period of remote instruction”.

Finally, the Court said that the SRO was “at liberty to remand to the IHO for further evidentiary proceedings, and clarification of her earlier opinion, if found warranted”.

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R.T. v. Arlington Cent. Sch. Dist., 22-CV-00437 (PMH), 2022 WL 16857176 (S.D.N.Y. Nov. 10, 2022) Dispute: Whether the matter should be remanded to the IHO for further proceedings.

Conclusion: The Court concluded that the matter should be remanded to the IHO for further proceedings.

Basis of the Court’s Decision: The IHO held that the district provided the student with a FAPE. The SRO disagreed and found that during the period March 14, 2018 to June 30, 2019, a FAPE had not been provided by the district.127 According to the SRO, the parents requested compensatory education in the form of an additional year of education in the private school. The SRO did not agree that this was appropriate. The parent appealed and the Court agreed that the SRO’s decision was a matter of educational policy and therefore merited deference and would be upheld. At the same time, the Court said that the parents had also requested other compensatory relief as appropriate and that this should have been considered by the SRO. By this time in the proceedings, the district agreed that it had denied the student a FAPE during the relevant period.

The Court set forth that “compensatory education is an available remedy under the IDEA to make up for the denial of FAPE”. The Court continued that “compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”. Further, the Court stated to the Court-developed principal that “an IHO may provide the parties additional time to supplement the record if they believe there is insufficient evidence to support a specific award [;] but simply choosing instead to award [the parent] nothing does not represent the qualitative focus on the child’s individual needs” and so was inappropriate.

In this case, the Court believed that “[a]bsent factual findings that there [was] no plausible way to remediate the nearly year and a half denial of FAPE … [it was] not prepared to prematurely shut the door on the parents’ claim, for [compensatory] relief”. However, the Court felt that “the paucity of the record” on the issue of compensatory education in the matter precluded crafting a compensatory education remedy at the judicial stage of the proceeding. The Court felt that remanding the matter to the IHO was “appropriate because the Court [believed] that the IHO should provide [the parents] with an additional opportunity to supplement the record with evidence necessary to support a compensatory award that is reasonably calculated and individually tailored to [the student’s] needs and demonstrates a causal relationship between [the student’s] current educational deficits and his earlier denial of a FAPE. The Court therefore concluded that “[t]he SRO’s determination that no remedy is warranted for the denial of a FAPE to [the student] from March 2018 to June 2019” should be reversed and that This was based on the fact that the district had failed to conduct an FBA/BIP and the CSE’s recommendation to continue the student in an ICT classroom for the remainder of the 2017-18 school year when the student’s teachers had already concluded that he was clearly failing to progress.

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the matter should be “remanded to the IHO to supplement the record and determine an appropriate compensatory award, if applicable”.

Application of a Student with a Disability., Appeal No. 22-015 (Mar. 25, 2022) Dispute: Whether, in light of the IHO’s failure to properly analyze the sufficiency of the student’s IEP and its reliance on retrospective testimony, the matter should be remanded to the IHO for a proper analysis and determination of the student’s IEP and to address its reliance on retrospective testimony.

Conclusion: The SRO vacated the IHO’s decision for its failure to properly analyze the sufficiency of the student’s IEP and remanded the matter to the IHO for a proper analysis and determination of the student’s IEP and to address its reliance on retrospective testimony.

Basis of the SRO’s Decision: The parent’s due process complaint notice identified a number of specific and discrete areas in which the parent asserted that the student’s 2019-20 and 2020-21 IEPs were inadequate.

Upon review, the IHO concluded, among other things, that “consistent with the makings of a sufficient IEP, the September 2020 IEP included a statement describing the student’s present levels of performance, established annual goals designed to meet the student’s needs and enabled him to make progress, and provided for the use of special education services”.

Additionally, the IHO “found no issues with procedure of (sic) implementation related to the 2020-21 school year that warranted a finding of a denial of a FAPE”.

The IHO further “found that the evidence reflected that the student began showing a marked improvement towards the beginning of February 2020 which followed into the beginning of the following year”. “In addition, the IHO pointed to improvements reflected in the student’s testing results obtained in 2021 which were well above average and that testimonial evidence indicated other areas of improvement”. “In light of the evidence, the IHO concluded that the limited data offered together with the legally sufficient IEP demonstrated that the student was actually making progress and that the district offered the student a FAPE for the 2020-21 school year”.

The IHO also denied the parent’s request for compensatory education and also deferral of the student to the CBST. The SRO, upon his review of the IHO’s “FAPE analysis for the 2020-21 school year”, concluded that the IHO’s decision “was based on an application of an erroneous legal standard” which “constitute[d] reversible error” and therefore “must be vacated”.

The SRO pointed out that the parent focused on “discrete issues within the March 2021 due process complaint notice upon which to draw the ultimate conclusion regarding whether the district offered the student a FAPE” The discrete issues included such things as, but not limited to, whether the district “appropriately evaluate[d] the student in the areas of adaptive living skills and assistive technology”, “failed to develop an appropriate transition plan or 593

postsecondary goals and the student’s September 2020 IEP failed to include appropriate transition goals”.

“An IHO is required to issue detailed findings on the discrete issues identified in a party’s due process complaint notice”. In this case, the SRO found that “[t]he IHO’s analysis of the parties’ claims … departed dramatically from this standard” and that [here] “rather than addressing each issue the parent raised in the due process complaint notice to determine whether the September 2020 IEP was appropriate and offered the student a FAPE for the 2020-21 school year, the IHO found that evidence of the student’s subsequent progress during that school year led to the conclusion that the district offered the student a FAPE”.

The SRO further explained that it was “well settled that the determination of whether an IEP offers a FAPE must be made by evaluating the IEP prospectively as of the time of its drafting” (See R.E. v. New York State Dep’t of Educ., 694 F.3d 167, 186 [2d Cir. 2012]). In this case, the SRO pointed out that “[t]he IHO’s approach which focused solely on whether the student made progress after the development of the September 2020, appears to be results oriented – an approach rejected by the Second Circuit (R.E., 694 F.3d at 184-88).

With respect to the remedy, the SRO advised that “[w]hen an IHO has not addressed claims set forth in the due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address” (F.B. v. New York City Dep’t of Educ., 923 F.Supp.2d 570, 589 [S.D.N. Y. 2013]; J.F. v. New York City Dep’t of Educ., No. 12 Civ. 2184 (KBF), 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]). This being the case, the SRO remanded “the parent’s claims relating to the September 2020 CSE and IEP, as set forth in the March 2021 due process complaint notice” to the IHO “to render a determination regarding whether the district offered the student a FAPE for the 2020-21 school year”.

Application of a Student with a Disability, Appeal No. 22-054 (June 22, 2022) Dispute: Whether the IHO should have dismissed the parents’ due process complaint notice with prejudice.

Conclusion: The SRO concluded that the IHO should not have dismissed the parents’ due process complaint notice with prejudice, vacated the order of dismissal, and remanded the matter for further proceedings.

Basis of the SRO’s Decision: In this case, the impartial hearing was scheduled for 12:00 p.m. “At 12:05 p.m. the IHO went on the record and stated she wanted to memorialize that this hearing was scheduled in accordance with the parents’ availability and they have not shown up”. “The IHO further stated that she and the district representative had sent independent emails to the parents telling them that we’re here, and we are available, and we’re waiting.” “The IHO noted that she was going to assume that she had not received a request for an adjournment or any contact from them and so would dismiss the matter because they had been offered the due process that they requested in their due process complaint and time had been taken away from other cases to give to the parents who hadn’t bothered to show up”. In a one-page decision 594

issued later that day “the IHO dismissed the parents’ due process complaint notice with prejudice”. “The IHO stated that due notice was sent to all parties of the scheduling, and the district appeared as scheduled …” “The IHO further stated that the parents failed to appear at the hearing and did not contact the IHO or the district regarding their nonappearance.”

“Accordingly, the IHO determined that as parents were offered the due process they requested in their complaint, and as they failed to avail themselves of that due process to prosecute their complaint, and further, as they failed to notify anyone else who had taken time on their behalf of their intention not to appear, the matter is dismissed with prejudice”.

In their appeal to the Office of State Review (OSR) “the parents allege that they never sought to withdraw the matter but rather appeared at the impartial hearing 11 minutes late after their counsel emailed the IHO apologizing for their tardiness and notifying the IHO that he was calling into the hearing now”. At that time, however, “the IHO and district representative had disconnected from the hearing already…” “In an answer, the district agrees with the parents that the IHO’s dismissal of the case after waiting only 5 minutes was premature”.

Upon review, the State Review Office (SRO) advised that “a dismissal with prejudice based on a party’s failure to comply with the directive of an IHO should generally be reserved for extreme cases”. The SRO indicated that “[w]hile the parents did not appear immediately at 12:00 p.m., by 12:05 p.m. the IHO was already stating on the record her intention to dismiss the matter due to the parents’ nonappearance”. The SRO continued that “[t]here is no indication in the hearing record that the IHO gave the parties notice that tardiness to the scheduled hearing date could result in the maximum sanction of dismissal with prejudice.” The SRO stated that the emails referenced by the hearing officer to the parents and their counsel “were not made a part of the hearing record”. Further, the SRO stated that “it [was] unclear if the emails were to the parents or to their counsel and the parents (and/or their counsel) were given very little time to respond to the emails”. The SRO also said that “it appears that no effort was made to contact the parents or their counsel via telephone to ascertain the reason they were not available on the phone at the exact start time of the hearing or whether they had attempted to appear but were unable to do so or had appeared late”. “The parents assert that their counsel emailed the IHO at approximately 12:11 p.m. appraising her of the parents’ tardiness and thereafter attempting to dial into the hearing only to find that the IHO and district representative were no longer available on the line”. The SRO added that “[t]here is no indication that, after learning that the parents’ counsel attempted to dial in to the hearing, albeit 11 minutes late, that any further opportunity was given to the parents or their counsel to explain their tardiness or to be heard as to why the IHO should not dismiss the due process complaint notice with prejudice.” The SRO continued that “[n]or is there any indication that the IHO weighed or considered lesser sanctions, such as allowing the district to proceed with the presentation of their evidence in the absence of the parents or dismissal without prejudice”. The SRO advised that “[w]hile the issue of limited resources and the dictates of fairness may support a dismissal with prejudice where a party has shown a pattern of dilatory conduct or disregard for an IHO’s directives, a dismissal with prejudice at the first instance of noncompliance by a party, without having ascertained facts that may be 595

relevant to the sanction of dismissal, as happened here, is an abuse of discretion that deprived the parents the due process contemplated” by the relevant regulations.

The SRO, rejecting the parents’ request for a decision on the merits, pointed out that “there was no factual record upon which to base such a finding, and an outright default judgment awarding any and all of the relief requested without question is a disfavored outcome”.

The SRO said that “the appropriate remedy for the IHO denying the parent (sic) her due process rights to a full and complete impartial hearing is a remand to continue the proceedings”.

Accordingly, the SRO vacated the IHO’s order of dismissal and remanded the matter for further proceedings.

Mr. O. v. Glastonbury v. Bd. of Educ., No. 3:20-cv-00690 (VAB), 2021 WL 6134691 (D. Conn. Dec. 29, 2021) Dispute: The parents assert that the Board of Education committed a number of procedural and substantive violations of the IDEA. The Board of Education contests these claims.

Conclusion: The Court held that the record did not allow it to make a decision on the parents’ claims and remanded the matter to the state hearing officer for further administrative proceedings.

Basis of the Court’s Decision: The parents claimed that the Board of Education violated the procedural requirements of the IDEA as to the following: “(1) removal of programming in areas of need, including objectives in the area[s] of math, developmental skills, emotions, physical therapy, social reciprocity and relatedness, without data or reason to do so; (2) failure to develop measurable IEP goals; (3) inaccurate designation of service hours; (4) denial of meaningful parental participation in [IEP] Team meetings; (5) failure to consider letters from [the student’s] doctors; and (6) predetermination of placement”.

The Board of Education “contests” each of these alleged procedural violations.

The Court held that it would “ordinarily” “defer to the Hearing Officer’s findings as to the issue of predetermination and parental participation in the Team meeting process”. However, in this case, the Court found that the IHO’s decision “did not analyze the record to determine whether the Parents had an opportunity for meaningful participation in the January 30, 2019 [IEP] Team meeting or whether the Board predetermined the Student’s placement”. The Court then held that it could not “determine, on the record before it, that the alleged predetermination and denial of parental participation – or indeed, any other procedural violations that may have occurred, in isolation or in aggregate – were so egregious as to entitle the Parents to relief as a matter of law” (see W.A. v. Pascarella, 153 F. Supp. 2d, 144, 154 (D. Conn. 2001)).

With regard to substantive violations, the parents claimed that the District’s “proposed programming is insufficient…as it lacks sufficiently individualized and intensive services in all areas of need”. The Parents also argued that the recommended program did “not constitute the least restrictive environment for Student”. The Court held that “[e]ven if the placement at [the 596

recommended program] is appropriate to meet the Student’s medical needs, an explanation as to the Student’s other relevant circumstances, including the timing of the proposed transition and need for specialized consultation supports around related services and feeding is lacking on the record before the Court.” The Court also held that the Hearing Officer [did] “not address other concerns raised regarding the appropriateness of the proposed IEP and placement, including the appropriateness of the timing of [the Students]’ transition to the proposed [recommended] program.” The Court also held that the IHO’s decision “did not address relevant differences between the 2018 and 2019 IEPs…”. Finally, the Court concluded that the IHO decision “lacks analysis as to additional, relevant evidence regarding the appropriateness of the proposed placement at [the district’s recommended placement] in light of [the Student’s] medical needs”.

The Court set forth that “in the absence of all of the analysis noted above, the Court cannot defer to the Hearing Officer’s determination as to whether the proposed program provided a FAPE. The Court cited authority that “[a] court may remand a proceeding when it needs further clarification or does not have sufficient guidance from the administrative agencies” (see E.M. v NYC Dep’t of Educ., 758 F.3d 442, 463 (2d Cir. 2014). The Court said that “[t]he appropriateness of a proposed IEP and placement is a question this Court is ill-equipped to decide in the first instance and involves important questions of educational policy that require educational expertise to resolve”.

With all of the above in mind, the Court remanded the proceeding to “a state administrative hearing officer for additional findings consistent with [the Court’s] Ruling and Order”.

V.A. v. New York City Dept of Educ., 20-CV-0989 (EK)(RML), 2022 WL 1469394 (E.D.N.Y. May 10, 2022) Dispute: Was it appropriate for the Court to remand the matter to the SRO for a determination regarding the appropriateness of the unilateral placement and whether equitable considerations favored tuition reimbursement.

Conclusion: In the circumstances of the case, the Court determined that it was appropriate for the matter to be remanded to the SRO, both with respect to whether the student’s unilateral placement was appropriate and whether equitable considerations supported a finding in favor of the parent.

Basis of the Court’s Decision: In this case, a review of the relevant circumstances show that the district did not offer the student a FAPE. However, in order to receive tuition reimbursement, the parent must also show that the student’s unilateral placement was appropriate and that equitable considerations favored tuition reimbursement.

With respect to the question of the appropriateness of the student’s unilateral placement, in this case, the IHO reached this issue but the SRO did not. The court concluded that in such a 597

circumstance it was generally appropriate to “look to the opinion of the IHO who did address the issue. C.F. v. New York City Dept of Educ. 746 F.3d 68, 82 (2d Cir. 2014).” However, upon, review, the Court found that the IHO’s decision was “inadequate” and “in particular, that several conclusions of the IHO [did] not appear to be sufficiently supported by evidence”. The court concluded that notwithstanding the inadequacy of the IHO’s decision, the question of whether the student’s unilateral placement was appropriate required educational expertise and that remand was therefore appropriate. See D.N. v. New York City Dept of Educ.,905 F.Supp. 2d 582, 589 (S.D.N.Y. 2012) see also New York City Dept of Educ. v,. V.S.No. 10-CV-5120, 2011 WL 3273922, at *11 (E.D.N.Y. July 29, 2011) and the court remanded the matter to the SRO for a determination in the first instance as to whether the parent’s unilateral placement was appropriate.

With respect to equitable considerations, a parent must show that such favors tuition reimbursement. The Court noted here that neither the IHO nor the SRO “comprehensively” addressed considerations relevant to whether equitable considerations supported the student’s unilateral placement. The court also noted that equitable considerations “may implicate issues of educational, policy”, and therefore that remand to the SRO was necessary and appropriate.

SERVICES Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Should the parents be reimbursed for private tutoring.

Conclusion: The SRO concluded that the parents should be reimbursed for private tutoring expenses.

Basis of the SRO’s Decision: “Regarding a parental request for private reading instruction, the issue is whether the student’s reading instruction constituted appropriate unilaterally obtained services for the student such that the cost is reimbursable to the parent”.

“A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns 598

on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” In this case, the student was dyslexic and possessed underlying reading deficits. A private psychologist conducted a psychoeducational evaluation of the student. The evaluator concluded that the student “met the IDEA classification criteria as a Student with a Specific Learning Disability in Reading (decoding)” and also “met the diagnostic criteria for dyslexia (languagebased reading disability). The evaluator “determined that the student required systematic, explicit, intensive and individualized reading intervention such as, among others, the Wilson Reading Method. The evaluator also indicated that such instruction needed to be “delivered by a skilled reading teacher who was not only trained in the program of choice, but was knowledgeable about the syllable patters in the English language and how to explicitly and systematically teach them. In addition, the private psychologist found that phonemic awareness exercises as part of the student’s reading intervention were crucial, and that her spelling program should be aligned with her reading intervention. Further recommendations included additional reading-specific interventions such as word level interventions, good phonics instruction, as well as advanced word study with attention to morphological awareness”.

“The parents hired a private tutor (tutor)… who possessed a Wilson Reading Certification, level one”. The tutor testified that “she was certified to instruct students who had been labeled with reading disabilities, specifically dyslexia … how to decode and encode words”. The tutor provided services weekly for about an hour to an hour and 15 minutes in a small group with the student’s sister.

The tutor also testified that she had read the private evaluator’s report and that “the errors that the student made during the evaluation were very similar to the errors that the tutor saw the student making”.

The tutor testified that the Wilson program was appropriate because it addressed the “behavior and strategies that students with dyslexia implemented that were not always very good.” In her tutoring, the student used the Wilson method to assesses the student’s reading and spelling 599

skills, identify strengths and weaknesses of the student’s reading and spelling, to teach the student so as to improve the student’s reading and spelling, and to identify the student’s progress and continuing needs.

She advised where the student currently was and his current needs.

Regarding the student’s progress, the tutor testified that the student “had mastered book one and had moved to book two” of the Wilson program. “The tutor commented that the student was doing really well with the Wilson reading program, that she was engaged, and that the student should continue with the program”.

The SRO advised that given the “description of the private reading instruction the tutor provided to the student, including her selection of the Wilson program to assess and address the student’s specific needs and the progress the student made, the evidence in the hearing record supports a finding that the private reading services constituted specially designed instruction that met her unique needs”.

TUITION REIMBURSEMENT Application of a Student with a Disability, Appeal No. 23-102 at pp. 20-21 (July 31, 2023) Dispute: Whether in this case the appropriate remedy was tuition reimbursement?

Conclusion: The appropriate remedy in this case was direct payment to the private school and not tuition reimbursement.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

“It is well settled that parents who reject a school district’s IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk. In such instances, retroactive reimbursement to parents by a school district is an available remedy under the IDEA. Alternatively, with regard to fashioning equitable relief, courts have determined that it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so”.

Emphasis in original.

The SRO explained that here “[w]ith respect to the parents’ financial obligation, the hearing record includes an enrollment contract signed by the parents … for the student’s attendance at [the private school] … and a contract signed by the parents for the student’s attendance [at the 600

private school] for [the next school year]”. The SRO found that the private school contract “is sufficient to demonstrate that the parents incurred a financial obligation to pay the costs of the unilateral placement inclusive of related services and travel”. Further and with respect to travel, the SRO held that the transportation agreement “demonstrates that the parents incurred a financial obligation to pay the transportation costs” The SRO further explained that “[w]ith regard to the parents’ ability to pay, since the parents selected [the private school] as the unilateral placement and their financial status is at issue, it was the parents’ burden of production and persuasion with respect to whether they had the financial resources to front the costs of the services”. The SRO pointed out that “the parents have established a financial obligation for the costs of the student’s tuition at [the private school]; however, as correctly argued by the district, the parents have not demonstrated [in any way] an inability to pay”. The SRO concluded that “[g]iven the lack of information in the hearing record regarding the parents’ financial resources, direct payment is not an appropriate form of relief; however, tuition reimbursement shall be awarded [] for the student’s attendance at [the private school] … upon proof of attendance and payment for services delivered”. The SRO wrote also that the district was also responsible for the student’s transportation costs to the transportation provider upon proof of payment.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Whether it was appropriate to provide the private school with direct payment of the costs of tuition and associated expenses or whether the circumstances support tuition reimbursement to the parent.

Conclusion: The SRO determined that under the circumstances of the case, it was appropriate, upon proof of payment made, to provide tuition reimbursement to the parent.

Basis of the SRO’s Decision In circumstances where the parent “had no financial standing to sue for direct retrospective payment to private placement, where terms of [the] enrollment contract absolved [the parent] of responsibility for paying tuition … retroactive reimbursement to parents by a school district is an available remedy under the IDEA.” “Alternatively, with regard to fashioning equitable relief, courts have determined that it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (3) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so.”

Emphasis supplied.

In this case, the SRO determined that the district failed to provide the student with a FAPE, that the private school was appropriate for the student, and that the equities supported the payment of tuition for the private school. “The parent has [now] requested that the district fund the 601

student’s attendance at [the private school] by directly paying [that private school] rather than by reimbursing the parent for the out-of-pocket costs of the student’s tuition”. “[T]he hearing record includes an enrollment contract signed by the [parent] … for the student’s attendance at [the private school]” for the relevant school year. Upon review, “the contract provided that the parent would be responsible for the tuition and supplemental costs for the student’s attendance at [the private school].” The record also includes a “transportation service agreement”. The SRO determined that the contract with the private school was “sufficient to demonstrate that the parent incurred a financial obligation to pay the costs of the unilateral placement, inclusive of the costs of related services and transportation”.

Regarding “the parent’s ability to pay, since the parent selected [the private school] as the unilateral placement and his financial status [was] at issue, it was the parent’s burden of production and persuasion with respect to whether he had the financial resources to front the costs of the services”. Upon review of the record, the SRO determined that even though “the parent [had] established a financial obligation for the costs of the student’s tuition at [the private school] … the parent has not demonstrated an inability to pay” With the above in mind, the SRO determined that,”[g]iven the lack of information in the hearing record regarding the parent’s financial resources, tuition reimbursement, as well as reimbursement for the costs of transportation, [should] be awarded for the student’s attendance at [the private school during the relevant] school year upon proof of payment for services delivered”.

EQUITABLE RELIEF Application of the Bd. of Educ., Appeal No. 24-092 (May 9, 2024) Issue: Remedies; compensatory education, equitable relief Dispute: Whether a finding of a significant (“material”) violation of a student’s IEP gives forth a remedy of equitable relief in the form of compensatory education.

Conclusion: A finding of a significant (“material”) violation of a student’s IEP gives forth a remedy of equitable relief in the form of compensatory education.

Key Take Away: A student may receive equitable relief in the form of compensatory education if an IEP is not implemented in a significant (“material”) way.

Reasoning: The student in this case has received diagnoses of attention-deficit hyperactivity disorder (ADHD) and oppositional defiant disorder and was eligible to receive special education services as a student with an other health-impairment. The student’s IEP for the 2021-2022 school year

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included small group counseling, individual counseling, and individual parent counseling and training.

During the 2021-22 school year, the district failed to provide the student with “at least 54 hours of 1:1 compensatory writing services, at least 30 hours of group counseling, at least 35 hours of individual counseling, and at least 8.5 hours of parent counseling and training” that were required by his IEP. The parent filed a due process complaint notice alleging that the district denied the student a FAPE for the 2021-22 school year. Among other things, the parent claimed that the district did not properly implement the student’s IEP and that as a result, he should have been given the above services, but was not. As relief, the parent requested compensatory education in these amounts to make up for the district’s failure to provide those services.

The IHO concluded that IDEA provides that if a district fails to implement an IEP in a material way, then those claims are actionable. The IHO here determined that the district did fail to implement the IEP in a material way with respect to the services at issue.

Uon review by the SRO, the district argued that because the IHO did not find the IEPs to be substantively inappropriate, that a compensatory education award was not warranted.

The SRO determined that a hearing officer can find that a district failed to provide appropriate programming and therefore a FAPE even if they do not find the IEP to be deficient. The SRO agreed with the IHO that a district can deny a student a FAPE if there is a material deviation or a material failure to deliver the services included in their IEP. The SRO agreed with the IHO’s decision that the district failed to provide the student with a FAPE because of its material failure to implement the student’s IEP. The SRO also agreed with the IHO’s equitable award of compensatory education in the amount specified in the IHO’s decision.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Was it appropriate for the district to reimburse the parents for the cost of a private evaluation as a matter of equitable relief.

Conclusion: The SRO concluded that, in the circumstances of this case, she would affirm the IHO’s decision that the district should reimburse the parents for the cost of a private evaluation as equitable relief.

Basis of the SRO’s Decision: In this case, the parent obtained a private psychoeducational evaluation (“private evaluation”) of the student and submitted it to the district as part of an initial evaluation. Among other things, the private evaluation included information about the student’s physical health, the student’s 603

social history, and also cognitive and other testing results. The district did not conduct its own psychological observation. Nor did it complete a social history of the student and nor, did it conduct a physical evaluation of the student. It did gather some evaluative data on its own, considered what information it had before it, and made a determination that the student was not eligible to receive special education programs and services as a student with a disability.

Because much of the information for the CSE’s consideration of eligibility came from the parents’ private evaluation, the parents requested reimbursement for the cost of the private evaluation “as a matter of equity”. Similarly, and upon review, the IHO granted the parents’ request “as a matter of equity”. In its appeal to the SRO, the district argued “that the IHO did not state any equitable rationale for reimbursement and the evaluation did not meet the criteria for district funding as an [independent educational evaluation] IEE”.

Regarding the district’s claim that the private evaluation did not meet the criteria for funding of an IEE, the SRO said that the district “conflated the procedure for obtaining an IEE at public expense with a request for reimbursement of a privately obtained evaluation as equitable relief for the district’s alleged failure to evaluate the student in all areas of suspected disability.” With respect to the question of equitable relief, as indicated below, the SRO held that the facts of the case supported a finding that the district should pay the cost of the parents’ private evaluation.

The SRO previously held that the district violated its child find obligation. That being the case, the SRO advised that “the district should have conducted an evaluation of the student prior to its receipt of the [private evaluation]”. Further, as part of an initial evaluation, the SRO pointed out that the district was required “to conduct a full and individual initial evaluation” and that this “must” include “at least” a physical examination, a psychological evaluation, a social history, a classroom observation, and “other appropriate assessments or evaluations”. See 8 NYCRR 200.4(b)(1).

The SRO pointed out that review of the determination of ineligibility document provided to the parents indicated that the only evaluative information provided by the district was “a classroom observation, a record review, and student report cards” – and that all other evaluative information came from the parents’ private evaluation. In particular, and among other things, the SRO concluded that the district “did not do its own cognitive or psychological assessment” as the district testified that this was “because it had been done by the private psychologist”.

Further, the SRO found that the district did not conduct a social history as the district testified that the “private psychologist had really covered that that pretty significantly in her report”. With respect to the required physical examination, the SRO found that the district did not do this as the district testified that “the private psychologist referred to the student’s medical history in her report”. With respect to additional testing, the district testified that it did not do any itself as “it was not necessary” and also testified that “it adopted the cognitive and psychological testing conducted by the private psychologist”.

Concluding, the SRO found that the district “failed to conduct a complete initial evaluation and also relied extensively on the private [evaluation]. That being the case, the SRO held that there 604

was “no basis to disturb the IHO’s award of equitable relief and the district must reimburse the parents for the cost of the [private evaluation]”.

ENFORCEMENT DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) Issue: -- remedies -- enforcement Dispute: did the District Court have the power to enforce orders of an IHO that were not complied with by the district.

Conclusion: The District Court has the power to order enforcement of IHO orders.

Key Take Away: A parent is allowed to go to federal court to enforce an order of an IHO that is not being complied with.

Reasoning: At the time that the parent went to federal court, the student was an eleven-year-old boy who had been diagnosed with autism.

Over the course of the 2017-2018 through the 2023-2024 school years, the parent filed a number of due process complaints about the district’s conduct. As a result of this, IHOs issued orders in favor of the parent. A number of these IHO orders were not complied with. These included that (1) compensatory services ordered by an IHO were not provided, (2) the district failed to turn over records that it had been ordered to do so by an IHO, and (3/) services and programs were ordered to be provided by an IHO including ABA services and the assignment of a 1:1 aide but this was not done.

The parent then filed a lawsuit in the Southern District of New York to enforce the IHO’s orders.

The District Court was clear that it “ha[d] the authority to issue an order to enforce the terms of an IHO’s order awarding services”. The District Court explained that it had the power to do so under Section 1983 and ordered that the IHO’s orders be followed.

SECTION 504 OF THE REHABILITATION ACT OF 1973 DAMAGES Issue: exhaustion

Doe v. Franklin Square Union Sch. Dist., 100 F.4th 86 (2d Cir. 2024)

Dispute: Was the parent required to exhausts IDEA’s administrative remedies before filing her suit under the ADA and Section 504.

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Conclusion: The parent was not required to exhaust IDEA’s administrative remedies prior to filing her suit under the ADA and Section 504.

Key Take Away: A parent is not required to exhaust IDEA’s administrative remedies where the substance of the parent’s suit is something other than the denial of a FAPE such as a violation of the ADA or of Section 504. Additionally, a parent is able to directly seek money damages under the ADA and Section 504 without being required to exhaust IDEA’s administrative remedies.

Reasoning: The student in this case is eligible for special education because of severe asthma.

“Beginning in the fall of 2020 and continuing throughout the early stages of the COVID-19 pandemic, the New York State Department of Health (NYSDOH) issued a series of interim guidance covering in-person instruction at schools”. Initial guidance on August 26, 2020 set forth that “all students, faculty, staff and other individuals at schools [were] to wear at least an acceptable face covering and permitted exemptions of alternatives for those medically unable to wear masks”. On April 9, 2021, the state modified its initial mandate to include “a mask mandate similar to that in the first interim guidance and permitted exemptions from the school mask mandate for students who are unable to medically tolerate a mask, including students where such mask would impair their physical health or mental health”. For the 2020-21 school year, the NYSDOH allowed a school district to reopen “on the condition that it complied with the mask mandate”. “Accordingly [the district] implemented a reopening plan that required all individuals to wear face masks while on school premises”.

For the 2020-21 school year, the student’s parent requested that the district “secure a medical exemption from the mask mandate …”. The parent’s efforts were unsuccessful. The district ultimately requested that the parent provide a “formal exemption letter from a physician.” The parent then obtained a letter from the student’s treating physician verifying that the student had asthma and setting forth that she “should be allowed to engage in physical activity without a mask in order to prevent wheezing”. The district rejected the parent’s request. Ultimately, the district advised the parent that on the advice of the district’s consulting physician, who had spoken with the student’s physician, it was “denying [the student’s] medical exemption request” based on the conclusion “that the mask was not creating difficulty with [the student’s] asthma”.

The parent subsequently requested of the district that the student attend school remotely, which request was denied. Thereafter, the parent requested that the student “be placed in a classroom with air conditioning and that she be allowed to wear a face shield or mesh mask as opposed to a cloth mask”. The district denied this request. For the 2021-22 school year, the parent sought another exemption for the student with the support of the student’s physician who “certified” that the student “is not medically able to tolerate a mask”. The district denied this request on the recommendation of its consulting physician but did agree to assign the student to a classroom with air conditioning. Thereafter the state issued guidance for the 2021-22 school year which required that all persons and visitors to the school “must wear masks at all times indoors…and 606

permitted exemptions for people with medical or developmental conditions that prevent them from wearing a mask”. On March 2, 2022, NYSDOH lifted the requirement that masks be worn in school and the district “adopted a new, mask optional policy”.

The parent filed a Complaint in Federal District Court on September 7, 2021. The Complaint set forth “constitutional and statutory” violations and sought injunctive relief and damages. The Court initially denied the parent’s motion for a temporary injunction and then for a preliminary injunction. Regarding this, the Court “concluded that rational basis review applied to the mask mandate because the mandate did not impinge on any fundamental right”. On November 3, 2021, the parties reported to the Court that they had reached a settlement agreement that would see the student wearing a “mesh mask” at school. The Court agreed that such “accommodation should remain in effect unless vacated by the Court”.

The parent filed an Amended Complaint on January 20, 2022 alleging a number of causes of action. Among other things, the complaint alleged in Count 5 a violation of the ADA and in Count 6 a violation of Section 504 of the Rehabilitation Act of 1973; both setting forth that the district failed to reasonably accommodate the student’s disability. The parent sought declaratory and injunctive relief as well as damages. In a decision dated March 24, 2023, the Court dismissed the plaintiff’s amended complaint in its entirety. Regarding the parent’s ADA and Section 504 claims, the Court concluded that “due to the lifting of the mask mandate [in March 2022], the Amended Complaint was moot insofar as it seeks declaratory and injunctive relief from that date forward.

The Court further concluded, among other things, that Counts 5 and 6 were limited to injuries suffered prior to November 3, 2021, the date the school district granted the mesh mask accommodation, because the accommodation had been “deemed acceptable by all parties”. The Court additionally held “that because the gravamen of [the parent’s] suit [was] the denial of a Free Appropriate Public Education, the IDEA exhaustion requirement applied to her ADA and Rehabilitation Act claims. This being the case, the Court dismissed the parent’s ADA and Section 504 claims for the period prior to November 3, 2021 on the basis that the parent had failed to exhaust her administrative remedies under the IDEA. The parent now appeals, among other things, the District Court’s denial of the parent’s ADA and Section 504 claims on the basis that the parent had failed to exhaust her administrative remedies under the IDEA. The Court of Appeals stated first that “[c]laims brought under the ADA and the Rehabilitation Act are subject to the exhaustion requirements of the IDEA when they seek relief that would also be available under the IDEA”. Further, the Appeals Court said that “[e]xhaustion is not necessary [, however,] when the gravamen of the parent’s suit is something other than the denial of the IDEA’s core guarantee – what the Act calls a Free Appropriate Public Education (FAPE)”. As indicated above, the District Court held that the gravamen of the parent’s suit was the denial of a FAPE, and that therefore the exhaustion requirement applied to her ADA and Section 504 claims.

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The Appeals Court explained that in order to decide “whether a suit complains of a denial of a FAPE, the Court should look to the substance, or gravamen of the [parent’s] complaint”. With respect to that, the Appeals Court looked to Supreme Court precedent in Fry v. Napoleon Cnty.

Sch., 580 U.S. 154 (2017). The Appeals Court referenced here Fry’s two-part test to determine whether a suit is a denial of a FAPE or something else.

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school – say a public theatre or library?

And second, could an adult at the school – say an employee or visitor – have pressed essentially the same grievance? When the answers to those questions are yes, a complaint that does not expressly allege the violation of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward.

Fry, 580 U.S. at 171.

The Appeals Court concluded that “[h]ere, a thorough reading of [the parent’s] Amended Complaint makes clear that [the parent] is seeking a remedy for [the district’s] alleged failure to accommodate [the student’s] medical needs under the ADA and Section 504. Consistent with Fry, the Appeals Court said that “[j]ust because the alleged conduct arose in a school setting does not automatically transform [the parent’s] objection to that conduct into a claim of a denial of a FAPE”. Hearkening back to Fry’s two-part test referenced above, it is clear, the Appeals Court said, “that [the parent] could have brought this same lawsuit against any public facility she sought to enter that had a mask requirement. “Likewise”, the Appeals Court said, “an adult accessing the school could have pressed the same grievance as the mask mandate applied to any individual (including among others, teacher’s contractors, or visitors) on school premises”. In sum, the Appeals Court said that the student’s “real complaint is one of disability-based discrimination, grounded in the [district’s] refusal to provide a reasonable accommodation”. As a consequence, the parent was not required to exhaust the administrative remedies set forth in the IDEA on the basis that the “substance or gravamen” of her suit was the IDEA. The district also argued to the Appeals Court “that exhaustion was required because the student [was] seeking the type of equitable relief available under the IDEA”. The parent “counters that her claims are not subject to the IDEA requirement because she now seeks only damages, which is not a form of relief available under the IDEA”. The Appeals Court agreed with the parent. It focused on the very recent 2023 Supreme Court decision in Luna Perez v. Sturgis Public Schs., 598 U.S. 142 (2023) and explained that this case “clarified” “that suits seeking damages under another federal law are not subject to the IDEA exhaustion requirements”. Importantly, the Appeals Court, which had previously rejected such an interpretation of the IDEA, upfront advised that its earlier and contrary authority in this area was “no longer good law”.

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Barnes v. Gorman, 122 S.Ct. 2097 (2002) Dispute: Whether punitive damages are an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Conclusion: The Supreme Court held that punitive damages are not an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Basis of the Supreme Court’s Decision The respondent in this case, a paraplegic, “suffered medical problems – including a bladder infection, serious lower back pain, and uncontrollable spasms in his paralyzed areas” as a result of a ride to the police station subsequent to his arrest and which “left him unable to work full time”.

Respondent brought suit against members of the Kansas City Board of Police Commissioners and asserted discrimination under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. “A jury found petitioners liable”. It awarded over $1 million in compensatory damages and $1,2 million in punitive damages. “The District Court vacated the punitive damages award, holding that punitive damages are unavailable in suits under Section 202 of the ADA and Section 504 of the Rehabilitation Act of 1973”. The Court of Appeals for the Eighth Circuit reversed the District Court. The Supreme Court took up the matter. It reversed the Eighth Circuit and held that punitive damages were not an available remedy under Section 504 of the Rehabilitation Act of 1973 and Section 202 of the ADA. Starting out, the Court said that Section 202 of the ADA prohibits discrimination against the disabled by public entities and that Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against the disabled by recipients of federal funding, including private organizations. Both statutes, the Court said, “are enforceable through private causes of action” and “the remedies for violations of Section 202 of the ADA and Section 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the under Civil Rights Act of 1964”.

The Court said further that “[a]lthough Title VI does not mention a private right of action”, prior caselaw has found that “there is an implied right of action,” “leaving it beyond dispute that private individuals may sue to enforce Title VI”. However, the Court also said that it was “less clear what remedies are available in such a suit”.

The Court then moved on to say, importantly, that “Title VI invokes Congress’ power under the Spending Clause … to place conditions on the grant of federal funds”. It said that the Court has “repeatedly characterized” “Spending Clause legislation as much in the nature of a contract: in return for federal funds, the recipients agree to comply with federally imposed conditions”. And, “just as a valid contract requires offer and acceptance of its terms, the legitimacy of Congress’ power to legislate under the spending power rests on whether the recipient voluntarily and knowingly accepts the terms of the contract”. “Accordingly”, the Court said, “if Congress intends 609

to impose a condition on the grant of federal monies, it must do so unambiguously”. The Court continued, say that while “all contract law rules” do not apply to Spending Clause legislation, “we have regularly applied the contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages”.

“The same analogy applies, the Court said “in determining the scope of damages remedies” and that a statute’s “contractual nature has implications for our construction of the scope of available remedies”. “One of these implications,” the Court believed, “is that a remedy is appropriate relief … only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature. It continued that “[a] funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation but also to those remedies traditionally available in suits for breach of conduct”.

Unlike compensatory damages the Court cited treatises to the effect that “punitive damages, unlike compensatory damages and injunction are generally not available for breach of contract”.

Relating to the argument that “an implied punitive damages provision [can] reasonable be found in Title VI” and that “reasonably applied contractual terms are simply those that comport with community standards of fairness”. The Court looked at these arguments and concluded that “[n]either approach would support the implication here of a remedy that is not normally available for contract actions and that is of indeterminate magnitude”.

The Court said that punitive damages on top of compensatory damages “could well be disastrous,” that it is “doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability[, and] it is doubtful whether they would even have accepted the funding if punitive damages was a required condition”. With this in mind, the Court said that “it can hardly be said that community standards of fairness support such an implication” of punitive damages.

Its “conclusion” here, the Court said, was that it “is consistent with the well-settled rule that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done”. More specifically, it said that “[w]hen a federal funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is made good when the recipient compensates the federal government or a thirdparty beneficiary for the loss caused by that failure”. Here, the Court said that “[p]unitive damages are not compensatory, and are therefore not embraced…”

The Court held that “[b]ecause punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it follows that that they may not be awarded in suits brought under Section 202 of the ADA and Section 504 of the Rehabilitation Act.” Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562 (2022) Dispute: Whether damages for emotional distress are an available remedy under Section 504 of the Rehabilitation Act of 1973, 610

Conclusion: The Supreme Court held that damages for emotional distress are not an available remedy under Section 504 of the Rehabilitation Act of 1973.

Basis of the Supreme Court’s Decision: “Petitioner Jane Cummins is deaf and legally blind and she communicates primarily in American Sign Language. In October 2016, she sought physical therapy services from respondent Premier Rehab Keller, a small business…” She “requested that Premier Rehab provide an ASL interpreter at her appointments. Premier Rehab declined to do so telling [her] that she could communicate with the therapist using written notes, lip reading or gesturing”.

Thereafter, Cummings filed a lawsuit asserting that Premier Rehab’s actions “constituted discrimination on the basis of disability in violation of the Rehabilitation Act of 1973.” “Cummings sought declaratory relief, an injunction, and damages”.

The Court pointed out that Congress had enacted Section 504 (and three other statutes128) “prohibiting recipients of federal financial assistance from discriminating on certain protected groups”. With respect to this, it pointed out that Section 504 prohibits “funding recipients from discriminating because of disability”. The Court said that while it is “beyond dispute that private individuals may sue to enforce [this statute] …, it is less clear what remedies are available”. With respect to Section 504, the Court found that this was “Spending Clause” legislation because it conditions “an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds”. It then said that therefore Spending Clause legislation “operates based on consent” – that is, in return for federal funds, the recipients agree to comply with federally imposed conditions”. The Court further said that, consistent with this, the power to enact Spending Clause legislation rests on “whether the recipient voluntarily and knowingly accepts the terms of that contract”. It then went on to say that “recipients cannot knowingly accept the deal with the Federal Government unless they would clearly understand … the obligations that would come along in doing so”.

Further, the Court said that if Congress intends to impose a condition on the grant of federal money “it must do so unambiguously”. Consistent with this, the Court said that “when considering whether to accept funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table”.

As to whether emotional distress damages are available under the Spending Clause statutes (which, as indicated above would include Section 504), that question is “simple” the Court said - “[w]ould a prospective funding recipient, at the time it engaged in the process of deciding whether to accept federal dollars have been aware that it would face such a liability?”. The Court said that in a similar situation, in Spending Clause cases, it had determined that punitive damages under Section 504 and the ADA were not available because “a prospective funding recipient at the time it engaged in the process of deciding whether to accept federal dollars” would not have In addition to Section 504 of the Rehabilitation Act of 1973, these statutes include Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Affordable Care Act. 128

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been aware that it would face such a liability because such a remedy was not “traditionally available in suits for breach of contract”. See Barnes v. Gorman, 122 S.Ct. 2097, 2101, 2103 (2002).

Therefore, with respect to the question of whether emotional damages are an available remedy in Section 504 cases, the Court said that it had “confronted the same dynamic” in Barnes – which, as indicated above, was “whether a federal funding recipient would have known when taking the money that it was agreeing to face punitive damages in suits brought…” As also indicated above, it concluded that, in the punitive damages instance, the recipient would not as such a remedy was not “generally available” or “traditionally available in suits for breach of contract” -The Supreme Court said that under this “framework” the analysis as to whether emotional distress damages was a possible remedy in a Section 504 case was “straight forward.” In particular, the Court looked at the discussions in a number of treatises and concluded that it is “hornbook law” that “emotional distress is generally not compensable in contract” and pointed to specific examples in such treatises that damages for emotional distress, or mental suffering, or emotional disturbance or mental distress or emotional trauma “are generally not available” for harms in contract.

The petitioner (Jane Cummings) argued that because “several contract treatises put forth the special rule that recovery for emotional disturbance is allowed in a particular circumstance: where the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result” and that because of this, a remedy for emotional distress is “traditionally available” under contract. The Court disagreed. It said that such was not a remedy that would be “traditionally”, “normally”, or “generally” available for contract actions but was “more finegrained.” It said that therefore the Court would not assume that funding recipients should be on notice of not only “usual remedies” but “unusual and even rare remedies as well”. That it would not expect recipients to “know the contours of every contract doctrine, no matter how idiosyncratic or exceptional”. Further, the Court set forth that the approach suggested by the petitioner was not the “general” or “traditional” rule – which would be necessary to ensure such a remedy. In fact, the Court said that “a majority rule does not exist on [that] question”.

The Court continued that the “closest” the legal system comes to “a universal rule -- or even a widely followed one -- regarding the availability of emotional distress damages in contract actions is the conventional wisdom…that such damages are for highly unusual contracts which do not fit into the core of contract law. The Court said that further, and with regard “to which highly unusual contracts trigger the exceptional allowance of such damages, the only area of agreement is that there is no agreement”.

The Court concluded that “[t]here is thus no basis in contract law to maintain that emotional distress damages are traditionally available in suits for breach of contract … and [that] correspondingly no ground under our cases, to conclude that federal funding recipients have

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clear notice … that they would face such a remedy in private actions brought to enforce antidiscrimination Spending Clause statutes.

For these reasons, the Court held that emotional distress damages are not recoverable under the Spending Clause antidiscrimination statutes considered” in the case, and which would include Section 504 of the Rehabilitation Act of 1973.

ELIGIBILITY A.J.T. v. Osseo Area Sch., Independent Sch. Dist. No. 279, No. 24-249, 2025 WL 1657415 (U.S. June 12, 2025) Issue: Section 504 of the Rehabilitation Act of 1973 - Eligibility Dispute: Whether parents bringing a claim under Section 504 relating to educational services need to make a “heightened” showing of bad faith or gross misjudgment when compared to a violation of Section 504 in other contexts in order to go forward.

Conclusion: The Supreme Court decided that parents bringing a claim under Section 504 relating to educational services do not need to make a heightened showing of bad faith or gross misjudgment when compared to a violation of Section 504 in other contexts in order to go forward.

Key Take Away: In a Section 504 case relating to educational services, a district may not hold a parent to a higher standard when compared to other Section 504 contexts. In this case, the Supreme Court decided that the case against the district could not be dismissed because the parent had not claimed that the district had acted in “bad faith” or with “gross misjudgment”.

Reasoning: The student in this case suffers from a rare form of epilepsy that severely limits her physical and cognitive functioning.

The student has seizures in the morning so frequently that she is unable to attend school before noon. However, the student is alert and able to learn from noon until about 6 pm.

When the student moved into the district and began to attend district schools, the district did not provide for evening instruction in her IEP which had been requested by her parents, and which had been provided by the previous school district. As a consequence, during the period 2015 to 2018, the student received 4.25 hours of school instruction per day compared to the typical 6.5-hour school day for other students. In 2018, when the student was to attend middle school, the district proposed further cutting back the length of her school day. The district rejected the parents’ requests that she receive the same amount of instruction that she had received in elementary school.

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The parents filed a complaint with the state administrative agency that the district was violating the IDEA, and an impartial hearing was held. The “ALJ” concluded that the district’s actions in refusing to provide after-hours instruction denied the student a FAPE. The ALJ ordered the district to provide several hundred hours of compensatory education and to add to her IEP home instruction from 4:30 pm to 6 pm on school days.

The district appealed the ALJ’s decision to Federal District Court in Minneapolis. The District Court for the District of Minnesota agreed with the ALJ. The District Court’s decision was upheld by the Eighth Circuit Court of Appeals.

The parents also filed a lawsuit that the district’s conduct violated the student’s rights under the ADA and Section 504. They requested a permanent injunction, reimbursement for certain costs, and compensatory damages. The District Court dismissed the parents’ lawsuit because the parents had not shown that school officials “acted with bad faith or gross misjudgment”.

The parents appealed but the Eighth Circuit Court agreed with the District Court. The Appeals Court said that “when alleged ADA and Section 504 violations are based on educational services for disabled children, a school district’s simple failure to provide a reasonable accommodation [was] not enough to trigger liability”. The Eighth Circuit Appeals Court said that the parent must prove “more” than “mere noncompliance with the statutes”. The “something more” the Eighth Circuit Court of Appeals said, was to show that school officials acted with either bad faith or gross misjudgment.

Both the District Court and the Eighth Circuit Court pointed out that the above standard “applies uniquely in the educational services context and is a more demanding showing compared to other sorts of disability discrimination claims”.

Upon review, the United States Supreme Court asked about the rationale for a different standard in the educational services context than in other contexts. The Supreme Court concluded that “ADA and Rehabilitation Act claims based on educational services should be subject to the same standards that apply in other discriminatory contexts”. Although it was not addressed, it appears that the Supreme Court assumed that the prevailing standard in most but not all lower courts under Section 504 and the ADA in other ADA and Section 504 contexts were “no intent” for injunctive relief and “deliberate indifference” for money damages. “[O]ther discriminatory contexts” would include ADA and 504 claims relating to, for example, public transportation, prisons, etc.

The Supreme Court said that “[n]othing in the text of Title II of the ADA or Section 504 of the Rehabilitation Act suggests that such claims should be subject to a distinct, more demanding analysis”. The Supreme Court further said that “[t]he substantive provisions of both Title II and Section 504, by their plain terms, apply to qualified individuals with disabilities”. The Supreme Court went on and stated that “[t]here is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing 614

certain kinds of claims”. Finally, the Court said that “the applicable remedial provisions” do not “suggest any such distinction”.

The Supreme Court reversed the Eighth Circuit’s decision and decided in favor of the student.

DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) Issue: Section 504 -- eligibility Dispute: Did the parent’s lawsuit properly say that the district had violated the student’s rights under Section 504 of the Rehabilitation Act of 1973.

Conclusion: The District Court concluded that the parent properly said that a violation of Section 504 of the Rehabilitation Act of 1973 had occurred.

Key Take Away: In order to be covered under Section 1983, a parent must show that the district has engaged in “bad faith”, “gross misjudgment”, or “deliberate indifference” regarding the student’s rights. A parent needs to remember that “key” to showing bad faith or misjudgment in a Section 504 lawsuit “is not merely the length of time for which the deprivation of a FAPE persists but [the district’s] awareness of the ongoing deprivation and the extent of the failure to remedy".

Reasoning: At the time that the parent went to court, the student was an eleven-year-old boy who had been diagnosed with autism.

Through the course of the 2017-2018 to the 2023-2024 school years, the parent filed six due process complaints about the district’s conduct. “A series of IHO’s determined that [the student] had been denied a FAPE for at least the 2017-2023 school years. During that time, [the parent] repeatedly brought issues to [the district’s] attention including by filing numerous due process complaints, specifically requesting the services [the student] needed but had been denied, and voicing complaints regarding [the student’s] mistreatment.”

As a result of the parent’s difficulties, she went to federal Court and alleged a violation of Section 504 of the Rehabilitation Act of 1973.

Section 504 of the Rehabilitation Act of 1973 provides that “no otherwise qualified individual with a disability … shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” In the context of a public education case, to have a lawsuit claim discrimination under Section 504 “[the parent] must allege that (1) [the student] is a qualified individual with a disability; (2) [the student] was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion or discrimination was due to [the student’s] disability.”

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The District Court explained that while “often brought together, claims under the Rehabilitation Act and IDEA are not coextensive” and that “the Rehabilitation Act provides relief from discrimination whereas IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination”. The District Court said that a parent “alleging a Section 504 violation therefore must show something more than a mere violation of the IDEA”. The District Court explained that the “something more is a showing that [the district] acted with bad faith or gross misjudgment, or deliberate indifference”. Specifically, “discrimination sufficient to support a Section 504 claim may be inferred when there is evidence that a school district acted with deliberate or reckless indifference to the student’s federally protected rights or with bad faith or gross misjudgment”.

The District Court further explained that a district’s “persistent failure to provide a student with a FAPE and to respond to requests for reasonable accommodation are sufficient to raise a plausible inference that the district acted with bad faith or gross misjudgment.

The “key issue” the District Court said, “is not merely the length of time for which the deprivation of a FAPE persists, but [the district’s] awareness of the ongoing deprivation and the extent of the failure to remedy”.

Looking at the parent’s lawsuit, District Court said that it “is rife with instances in which [the District] stymied, rather than aided, [the parent’s] attempts to secure [the student] needed services, such as by repeatedly failing to comply with the pendency mandates and the IHO’s orders, revoking [the student’s speech and language training] without alerting the parent and continuously underproviding the services [the student] needed and which [the district] had agreed to – or had been ordered to provide”.

The District Court concluded that the facts alleged above show a continuing “failure to properly implement [the student’s] IEP even when presented with clear instruction by IHOs” and demonstrates, “at best, the [district’s] deliberate indifference to [the student’s] educational rights as a person who was disabled.” The District Court went on to say that the parent’s “allegations of the district’s continuing course of action stonewalling or stymying [the parent’s] efforts to procure a FAPE for the [the student] are sufficient to raise the plausible inference that [the district] acted with bad faith or gross misjudgment”.

The District Court concluded that the parent had alleged a proper claim under Section 504 of the Rehabilitation Act of 1973.

Close v. Bedford Cent. Sch. Dist., No 23-CV-4595 (CS), 2024 WL 3422713 (S.D.N.Y. July 16, 2024) Issue: Title II of the ADA & Section 504 of the Rehabilitation Act of 1973 -- eligibility Dispute: Whether the parents and students set forth a cause of action of violations of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the ADA.

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Conclusion: The Court concluded that the parents and students did not establish a cause of action of violations of Section 504 and Title II of the ADA. Key Take Away: A parent can show that a district violates Section 504 and Title II of the ADA if, among other things, the parent can show that the district was “deliberately indifferent” to the harassment. Deliberate indifference can be assigned (imputed) to teachers and administrators for students’ peer-on-peer harassment when those teachers or administrators display deliberate indifference to the underlying harassment, where such harassment is motivated by discrimination.

In this case, the Court found that the district was not deliberately indifferent to harassment when it was unaware that general education students took pictures and videos of special education students in the boys’ bathroom with their pants down or, when it did know such a thing, it took prompt steps to strengthen the protocols around the supervision of special education students in the boys’ bathroom so as to ensure that similar acts affecting the students’ security and privacy would not recur.

Reasoning: This case concerns three school age children eligible for special education programs and services as students with autism and their parents.

Starting in the fall of 2021 the students were verbally and sexually harassed by general education students who took photographs of them in the bathroom while their pants were down. 129On March 11, 2022, a student who was not a party to the suit told special education staff that students had taken pictures and videos of two of the students in the bathroom with their pants down. On March 14, special education staff implemented new procedures for supervision in the boy’s bathroom to prevent similar incidents in the future. On March 17, 2022, a special education teacher notified the students’ parents about the harassment. On March 24, district special education staff and a police officer assured one of the parents that the inappropriate behavior and harassment would stop and that there were new bathroom protocols to prevent similar bullying incidents in the future. One parent received an anonymous text message and screen shots of pictures of the three students. He provided that cellphone to the police and district employees for investigation. During the district’s investigation, around March 21, 2022, three students confessed in writing to district staff stating that they were involved in the March 11 incident. However, district staff did not inform the parents of the students who were subject to the harassment. The district staff did not believe that the written confessions were “sufficient enough evidence” to share with the parents. In their complaint, the parents argue that those students were not punished for their actions on March 11.

As indicated below, the alleged facts did not indicate that any district employee “was aware of such bullying until Friday, March 11, 2022” and that after that incident special education staff “took prompt steps to strengthen the protocols around the supervision of special education students in the boys’ bathroom so that similar acts affecting their security and privacy would not recur”.

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On April 6, 2022, the Board of Education agreed to hire a third-party firm to investigate the incident. The firm began its investigation in July of 2022. The report found that the district took prompt steps after receiving the Whistleblower’s report of misconduct on March 11 to prevent similar incidents in the future.

The parents filed their initial complaint on June 1, 2023, and an amended complaint on October 12, 2023. The amended complaint included claims of violations of Section 504 and of Title II of the ADA. The district filed a motion to dismiss.

The District Court dismissed the parents’ Section 504 and Title II ADA claims.

The District Court stated that to make a viable claim under Section 504 and Title II of the ADA a person must demonstrate that: 4. they are a qualified individual with a disability, 5. the defendant is subject to Title II of the ADA or Section 504, and 6. they were denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities or was otherwise discriminated against by the defendant because of her disability”.

The District Court also pointed out that in cases brought under Section 504 and Title II of the ADA for harms caused by school bullying, district courts in the Second Circuit have used a three-part test to determine whether schools are liable for peer-to-peer harassment. See Davis v. Monroe, 526 U.S. 629, 650 (1999). The District Court pointed out that under that test, individual defendants can be liable for peer-to-peer harassment even if their actions are not motivated by discrimination if those defendants displayed deliberate indifference to the underlying harassment, where the harassment is itself motivated by discrimination. The District Court pointed out that to establish that a defendant was deliberately indifferent, a plaintiff must show that 5. they were harassed on the basis of their disability; 6. the harassment was so severe, pervasive, and objectively offensive that it altered their education; 7. the school district had actual notice of the disability-based harassment; and 8. the school was deliberatively indifferent to it.

The District Court did not address the first three prongs because it concluded that the facts in the complaint were not enough to satisfy the fourth prong. Therefore, the District Court concluded that the case did not rise to the level of a Section 504 or Title II of the ADA violation.

With respect to deliberate indifference, the District Court pointed out that “[d]eliberate indifference to bullying under Davis is found where the district’s response was so clearly 618

unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur”.

In this case, the District Court concluded that the parents did not allege any facts that supported a claim that the district and its staff were deliberately indifferent to the bullying experienced by the students. The Court used the fact that the district responded quickly after learning of the bullying and the strengthened protocols to prevent future incidents to support their decision that there were no facts to support a claim of deliberate indifference.

Even though the District Court agreed with the third-party investigation report that “the investigation into which students were responsible for the March 11 incident was deficient, particularly as to the failure to properly document investigative steps, the extent to which the investigation lacked coherent leadership, and the manner in which investigative findings were (or were not) reported to key constituencies”, the District Court said that those deficiencies did not meet the requirements of showing deliberate indifference. Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it; allegations that the District Court said, were not a part of the amended complaint. Moreover, the District Court added that while the parents could have plausibly alleged “negligence” or even “incompetence in conducting the investigation, they have not plausibly alleged that the district did so little to safeguard the [students] so as to give rise to a reasonable inference that it intended for the harassment to occur”.

The District Court dismissed the parents’ and students’ Section 504 and Title II of the ADA claims.

D.S. v. New York City Dept of Educ., et al., 600 F.Supp.3d 434, 439-451, 455-60 (S.D.N.Y. 2022) Dispute: Did the plaintiff set forth a violation of Section 504 of the Rehabilitation Act of 1973.

Conclusion: The Court concluded that the plaintiff’s amended complaint set forth a violation of Section 504 of the Rehabilitation Act of 1973.

Basis of the Court’s Decision: At all relevant time periods the student was 11 and/or 12 years old, in the sixth and/or seventh grades and enrolled in a district school. The student previously had surgery to remove a brain tumor, which, during the relevant time period he required follow-up care to monitor for its potential recurrence and to control seizures. The student “ha[d] been diagnosed with posttraumatic stress disorder, (PTSD), generalized anxiety disorder, epilepsy, and various learning disabilities.” As a result of the student’s disabilities, at all relevant times was on an individualized education program (IEP).”

The Court set forth the legal standard in Section 504 of the Rehabilitation Act of 1973 (hereinafter “Section 504”). That section provides that “[n]o otherwise qualified individual with a disability in 619

the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under, any program or activity receiving federal financial assistance”. The Court went on to explain that to show a prima facie violation of a Section 504 claim, a plaintiff must show that (1) he is a disabled person under the Rehabilitation Act; (2) he is otherwise qualified for the program; (3) he is excluded from benefits solely because of his disability; and (4) the program or special service receives federal funding. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014)….”

The Court pointed out that “in the school bullying context, the bullying itself need not be based on a disability – i.e., the object of the bullying need not be the victim’s disability. This is because in such cases, the claim focuses on a different harm: [t]he denial of the student’s right under the [Individuals with Disabilities Education Act] to an appropriate education … The Second Circuit has thus recognized that a Section 504 violation may be predicated on the claim that a disabled student was denied access to a free appropriate education as compared to the free appropriate education that non-disabled students receive.”

“Nevertheless, because the Rehabilitation Act addresses discrimination against disabled students rather than failures to provide special education services, a claim based on a denial of a free appropriate public education (FAPE) brought under Section 504 requires something more than a mere violation of the [Individuals with Disabilities Education Act (IDEA)] … That something more is evidence that the defendant acted in bad faith or gross misjudgment … Put otherwise, discrimination sufficient to support a Section 504 claim may be inferred when there is evidence that a school district acted with deliberate or reckless indifference to the student’s federally protected rights or with bad faith or gross misjudgment”.

The Court concluded that “[i]n light of the student’s PTSD and learning disabilities, the student was entitled to special education and other services under the IDEA, including an IEP.” As set out below and in his federal amended complaint, during the student’s sixth and seventh grade years, he was “ruthlessly” and incessantly bullied and harassed because he advised his class that he was gay and that his parents were gay and married. The amended complaint set forth that in the student’s sixth and seventh grade years, the parents attended IEP meetings, “raised concerns about how the bullying [the student] faced impacted his education” or “asked that his IEP be reopened and a new IEP meeting take place”. At IEP meetings, the amended complaint sets out that the district staff “refused to discuss the bullying and stated that it was not an appropriate topic to be included or addressed in an IEP”.

On or about June 2019, a parent requested an impartial hearing under the IDEA. The parent asserted in that administrative complaint that, among other things, the district had failed to “address [] the bullying [the student] faced at [the school] and its effects on his ability to learn”.

Among other things, the impartial hearing officer (IHO) concluded that “two years of bullying that [the student} was subjected to at [his school] and the apparently callous disregard of school staff contributed to the student’s deprivation of a FAPE.” The IHO further explained that “[t]he impact 620

of the [s]tudent’s prior trauma was greatly exacerbated by the prolonged and intense bullying … and that the failure to address the bullying situation that the [s]tudent experienced constituted a deprivation of FAPE. In this regard, the IHO pointed out that “[i]n addition to not making academic progress, the [s]tudent actually experienced substantial emotional, behavioral and social regression during his two years at [the school]” and that “[p]er the testimony at the hearing, the bullying constituted an additional and continuing trauma throughout the time of the [s]tudent’s attendance at the school”.

The district conceded at the impartial hearing that it had violated the IDEA and failed to provide [the student] a FAPE. Consistent with this, the district “did not contest or appeal” the IHO’s decision,”.

The parent filed a complaint of discrimination pursuant to Section 504 of the Rehabilitation Act on June 28, 2021, in the United States District Court for the Southern District of New York.

Thereafter, the defendants filed a motion to dismiss in accordance with Federal Rule 12(b)(6).

Regarding the rule, the Court noted that “[w]hen resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, drawing all reasonable inferences in favor of the plaintiff”.

In this case, the court concluded that the amended complaint set forth facts sufficient to show that the district and relevant staff acted with deliberate indifference.

Upon a review of the amended complaint, the Court concluded that the argument that the amended complaint does not adequately plead deliberate indifference “falls well short.” Among other things, the Court pointed out that plaintiff’s pleading set forth that “for years [the student] faced a steady stream of bullying and harassment from his peers. Almost immediately after coming out as gay and revealing the fact that his fathers are gay”, the amended complaint alleges that the student “was ruthlessly bullied within [his school] for his sexuality and gender expression. He was regular called derogatory names … ”. Sexually based “rumors spread” in the classroom. “Students made crude sexual jokes about [the student’s] means of dealing with the stress” “Even [the student’s] friends became subject to harassment due to their association with [the student]” and “[the student’s] and his fathers’ efforts to create a safe space for [the student] at school – a [Gay Straight Alliance] club were rejected in deference to other students’ potential offense at the club”. In response to this, the amended complaint alleges that the student “largely kept to himself. He began to lose sleep and miss school due to anxiety about the bullying, which in turn required multiple counseling sessions every week to deal with it all … And he developed suicidal ideations – making comments to that effect before both teachers and his parents”.

The Court concluded that “as pled”, the school and school officials “were on ample – indeed detailed – notice of [the students] claims of bullying and of its dire consequences for him” And that the student’s “parents put a broad array of [district] administrators on notice of the severe bullying that [the student] was experiencing”: notices to teachers and school administrators; 621

information and complaints from parents “about the bullying and the need for effective innervation; demand for meetings with school officials to discuss their son’s harassment and find solutions”; ”logged in information” to school systems to communicate information to other staff; “[district] officials outside of the [school] met with the [student] and school officials to discuss his bullying and escalated the issue within [the district].”

The amended complaint also set forth that “the school failed to meaningfully respond to those pleas and [e]ven when the school found instances of bias-based harassment” “school officials often did nothing or next to nothing in response”.

The district answered by alleging that the actions were “reasonably calculated to end the harassment”. “On the pleadings however, which, on a motion to dismiss must [as indicated above], be read in the light most favorable to the plaintiff,” the Court said that “such a defense is unsustainable.” In particular, the Court said that the parent “plausibly pleads long running inattention, inaction, and deflection from the defendants, which was not close to offset by the school’s occasional logging of incidents, hosting of toothless mediations, and the like” and “the school’s efforts were not reasonably calculated to end the harassment”. The Court concluded that “the facts alleged make out a textbook case of deliberate indifference”.

The Court pointed out its agreement with the district and its officials that “courts as a general matter should refrain from second guessing the day-to-day disciplinary decisions they are charged with making”. But, the Court said, “that does not categorically insulate school officials from liability in well-pled cases of unreasonable official responses to a student’s harassment. And on the pleadings here”, the Court said that “the school’s failure to act to protect a known vulnerable student in the face of known severe bullying cannot be found reasonable so as to entitle it and its officials to any such solicitude”.

With respect to defendants’ case, the school and district officials first argue that the amended complaint “does not allege that [the student] was bullied because of his disabilities”. The Court replied that even if true it made no difference as “Section 504 claims do not require such a factual basis”. In fact, the Court said that the district and district officials and staff in fact “acknowledge” that “a Section 504 claim may be based on the denial of a FAPE so long as the school acted with gross negligence or reckless disregard in so denying”.

Second, the district, its officials, and staff assert that they “went to great lengths in their attempts to mitigate the alleged bullying”. The Court said that the plaintiff’s pleadings “forcibly contradicted that”. The Court pointed out that it was “largely undisputed at this stage – that: (1) the school deprived [the student] of a FAPE” as [the IHO found] and the district did not challenge; (2) the deprivation was based on the bullying [the student] experienced at the school; (3) the bullying substantially interfered with [the student’s] educational opportunities; and (4) the school did not account for the bullying in the student’s IEP, which lacked an anti-bullying plan or the provision of reasonable services to stop (or mitigate) the bullying.” Regarding the latter and 622

as indicated above, the amended complaint set forth that district staff “refused to discuss the bullying and stated that it was not an appropriate topic to be included or addressed in an IEP and refused to include in the IEP any services or supports to mitigate the effects bullying had on the student”.

And with respect to the “deliberate or reckless indifference” required of a 504 claim, the Court concluded that the amended complaint “adequately alleges that defendants were deliberately or recklessly indifferent to their response to [the student’s] bullying”.

The Court denied “defendant’s motion to dismiss the Section 504 claim”.

FREE APPROPRIATE PUBLIC EDUCATION (FAPE) UNDER SECTION 504 M.H. v. New York City Dept. of Educ., 24-CV-2431 (AS), 2025 WL 27534 (S.D.N.Y. Jan. 3, 2025) Issue: Section 504 – Free Appropriate Public Education (FAPE) Dispute: Whether the parent’s claim that the district had violated the student’s rights under Section 504 of the Rehabilitation Act of 1973 can be considered by the District Court.

Conclusion: The District Court had the power to review the parent’s claims that the district had violated the student’s rights under Section 504.

Key Take Away: A parent may assert a violation of Section 504 on the basis of a denial of FAPE for a prolonged period of time; four years in this case.

Reasoning: The parent charged a violation of the student’s right to a FAPE under Section 504 of the Rehabilitation Act of 1973. The District Court said that a Section 504 claim of a denial of FAPE must be based on something more than the violation of the IDEA. The District Court pointed out that the denial of FAPE plus “proof of bad faith or deliberate indifference” was sufficient to show a violation of the student’s right to a FAPE under Section 504.

The parent’s argument that the student was denied a FAPE under Section 504 was based on the claim that the student had been denied a FAPE for four years. The District Court concluded that the prolonged denial of a FAPE can be enough to show “deliberate indifference”. The District Court concluded that the parent’s claim of a violation of Section 504 on the basis of a denial of FAPE should be considered.

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VW v. New York City Dep’t of Educ, No. 21 Civ. 6317 (AT), 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022) Dispute: Does Section 504 of the Rehabilitation Act of 1973 (Section 504) ensure that the parent will be reimbursed for the loss of his/her time providing services as a transportation paraprofessional to the student.

Conclusion: The Court concluded that the parent did not make out a prima facie claim of discrimination under Section 504.

Basis of the Court’s Decision: The parent asserts that Section 504 provides her with the right to receive reimbursement for her service as a transportation paraprofessional for the student.

The Court explained that the elements of a Section 504 claim included (1) a showing that the plaintiff is a qualified individual with a disability; (2) that the plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity, and (3) that such exclusion or discrimination was due to the plaintiff’s disability. See B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016).

The Court pointed out that it was undisputed that the district is a recipient of federal funding for the purposes of Section 504 and that the student is a “qualified individual with a disability”. The parent also alleges that the student “was excluded from participation in [district] transportation services to and from school and therefore from school itself … because of the district’s’ failure to provide, at a minimum, a travel professional”.

The Court explained, however, that the parent did not allege that such exclusion was due to the student’s disability. The Court further explained that “a Section 504 claim predicated on allegations of a denial of a FAPE to a disabled student requires proof of bad faith or gross misjudgment” and that this was not alleged by the parent here.

With the above in mind, the Court concluded that the parent did not make out a prima facie claim of discrimination under Section 504.

Robert F. v. N. Syracuse Cent. Sch. Dist., No. 5:18-CV-00594 (LEK/ATB), 2021 WL 3569108 at *3-*5, *7-*8 (N.D.N.Y. Aug. 12, 2021) Dispute: Whether the Court should grant summary judgment on the parents’ Section 504 claim relating to the reduction of the student’s hours in speech language therapy.

Conclusion: The Court determined that it was appropriate to grant summary judgement on the parents’ Section 504 claim relating to the reduction of the student’s hours in speech/language therapy.

Basis of the Court’s Decision: A claim under Section 504 requires a finding that “(1) the student is disabled, (2) the student is otherwise qualified to participate in school activities, (3) the school or the board receives federal financial assistance and (4) the student was excluded from 624

participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability”.

At issue in this case is the fourth element above; that of intentionality. Regarding this, a 504 claim does not require “personal animosity or ill will” “but [only] gross negligence or reckless indifference” which is the same as “bad faith or gross misjudgment.”

To be successful on a motion for summary judgment, the moving party must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”. The moving party has “the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists”. This being satisfied, it becomes the burden of the non-moving party to “move forward with specific facts showing that there is a genuine issue for trial”. “[T]he mere existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]” and there must be “some hard evidence showing that [the nonmovant’s version of the events is not wholly fanciful”. “Statements that are devoid of any specifics but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment”.

In this case, the parents move for summary judgment on their claim that the district “failed to provide (the student) with appropriate speech therapy services by reducing the weekly service hours on his IEP”. The Court cites to state regulations at 20 NYCRR 200.13(a)(4) and says that this regulation “require[s] that instructional speech and language services be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six”. The Court further cites to L.O. v. New York City Department of Education, 822 F.3d 95, 116 (2d Cir. 2016) for the proposition that the “failure to provide the required level of speech-language therapy has been found to be a serious procedural defect that deprived the student of important educational benefits”. According to the Court, the papers here showed that the district “knew that [the student] required speech services in order to have meaningful access to education and provided fewer services than required when they reduced the weekly service hours (emphasis added).”

The Court concluded that “no reasonable juror could conclude that reducing services to [the student] after he failed to make progress does not constitute deliberate indifference”. The Court also concluded that the motion papers showed that it was “undisputed that [the student’s] IEP did not provide for a minimum of 30 minutes of speech and language services daily as required (emphasis added)”. The Court indicated that instead, the papers showed that during the 20152016 school year, the district “only provided for 30 minutes of speech and language therapy four times per week, and then reduced the amount of therapy to 30 minutes three times per week the following school year”. The Court said that “[c]onsidering that [the student’s] hours were reduced after not meeting his goals in speech, the School District demonstrated deliberate

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indifference by providing fewer services than deemed necessary for [the student’s] speech and language needs” 130

LEAST RESTRICTIVE ENVIRONMENT Yonkers (NY) Public Schools, 69 IDELR 18, 116 LRP 46675 (OCR 2016) Subject: City of Yonkers Compliance Review.

Conclusion: The Office of Civil Rights (OCR) clearly stated that it was the District’s responsibility to evaluate each student individually and to justify why each student could not be educated in a general education environment. In this case the OCR found that the district did not show that it did this. It therefore entered into a resolution agreement regarding the District’s relevant actions in the futures.

Basis of the OCR’s decision: With respect to District policies, practices, and procedures OCR explained that prior to the referral of a student to the CSE for evaluation and placement, the district’s procedures called for the creation of a Pupil Support Team Packet (PSTP). Such a document is to “detail the interventions that the school attempted with students prior to their referral to the CSE”. OCR interviewed staff with respect to the use of the PSTP. Several staff “informed” OCR that the completion of the PSTP was aspirational and not uniformly or widely enforced”. The Director of Special Education advised “that the documentation related to the PSTP should be completed prior to a CSE referral but was not always completed as required”.

Regarding the percentage of students in self-contained settings, for the 2013-14 school year, the District provided “Time Outside of Regular Classroom” (TORC) data for 3,241 of the district’s 4, 099 special education students. A review of this data showed that the median TORC value was 67.5 % and that the mean TORC value was 50.06%. OCR further determined that more than half (52.82%) of the 2013-14 TORC students were outside of the regular education classroom at least half of each school day and that 2013-14 TORC data indicated that 49.15% of the TORC students were outside of the general education classroom, for 75% or more of each school day. With respect to the 2014-15 school year, the District was able to provide TORC values for 3,503 (81.50%) of the district’s special education students. A review of this data indicated that the median TORC value for such students was 75.90% and that the mean TORC value was 51.47%.

Further, more than half of such students (1,890 or 53.95%) were outside of the regular education classroom for at least half of each school day and 1,766 or 50.41% of the TORC students were outside of the regular education classroom for 75% or more of each school day.

The Court’s analysis suffers by its failure to cite to the correct text of 30 NYCRR 200.13(a)(4) during the relevant time period. In particular, as indicated in L.O. v. New York City Department of Education, 822 F.3d 95, 16 (2nd Cir.2016), the text of this regulation changed on December 8, 2010 to only require that “[i]nstructional services shall be provided to meet the individual language needs of a student with autism”. However, the Court’s conclusion that the district showed deliberate indifference did not rely solely on the text of the regulation but also on the fact that the papers under review showed that the student’s speech-language therapy was reduced after the student did not meet the speech and language goals on his IEP. 130

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The OCR also reviewed Yonkers data with “indicator 5” and “indicator 6” of New York’s “Special Education School District Data Profile”. Indicator 5 measures “the percentage of students with disabilities who were in the general education program for less than 40% of the day or 80% or more of the day”. Indicator 6 measures the percentage of students with disabilities between ages 3-5 who were in a “regular early childhood program and received the majority of special education and related services in the regular early childhood program” or a “separate special education class, school, or residential facility”. OCR found that for every school year reviewed the District did not meet New York State Target Goals 5 and 6.

As it related to file reviews, OCR selected a random sample of 164 students from the 1,521 students who were classified as learning disabled during the 2014-15 school year. The decision to look at learning disabled students was because more than half, (768 or 50.49%) of these students were placed outside of the regular education classroom for at least half of each school day and that 671 or 44.2% were placed outside of the regular education classroom for 75% or more of each school day. Additionally, students with learning disabilities “represented the largest component of the District’s student population classified as students with disabilities”. Of these 164 students, the district initially placed 126. And of this 126, the district placed 53 or 50% in a self-contained setting. As a result of its file review, while it saw some good things in other areas, “OCR determined, however, that for a majority of the files, the documentation contained within the files did not support that the groups of knowledgeable persons had demonstrated that the education of the students in the regular educational environment could not be achieved satisfactorily with the use of supplementary aids and services or, had provided an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary”. “In addition, a majority of files lacked PSPT or referral packet or any other documentation detailing interventions attempted in the regular education environment.”

Moreover, only 60 or 36.59% “of the files reviewed contained documentation purporting to demonstrate that the District attempted to provide educational services in the regular educational environment with the use of supplementary aids or services.

Importantly a review of the IEPs of 162 of the 164 students in the sample contained boilerplate language relating to whether or not the student was being placed in the least restrictive environment. With respect to this, 81 or 50% of the sampled IEPs set forth only in boilerplate fashion that “the student requires special instruction in ... [an environment] with a smaller student-to-teacher ratio and minimal distractions in order to progress in achieving the learning standards”. Regarding its survey, OCR also noted that an additional 47 (29.01%) of the IEPs identified when students would not participate in the general education environment but provided no reasoning for the removal” and 27 or 16.67 percent advised “Not Applicable”. Only 7, or 4.32% of the IEPs contained individual reasoning as to why the student could not be educated in a regular education environment for at least part of the school day. However, even here, those IEPs did not report why the student could not be educated in the regular educational environment even with the use of supplementary aids or services or why the length/percentage of time placed outside of the regular classroom was appropriate or necessary.

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With respect to the sampled student files, OCR concluded that “[c]onsistent with the general lack of PSTPs contained within the sampled files and the boilerplate language contained within the IEPs, OCR was generally unable to locate individualized evidence that demonstrated that the education of the sampled students could not be achieved satisfactorily in the regular educational environment with the use of supplementary aids and services, or an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary” (emphasis added). OCR provided 12 case examples “highlighting [its] overall analysis”.

OCR then stated that its “investigation did not reveal information to support that the District’s practices were consistent with the regulation implementing Section 504 at 34 C.F.R 104.34 (and that [s]pecifically, OCR’s file review did not support that the District was consistently placing students with disabilities in the regular educational environment unless the District could demonstrate that the education of the student with a disability the regular environment could not be achieved satisfactorily even with the use of supplementary aids and services or providing an explanation as to why the length/percentage of time placed outside of the regular education classroom was appropriate or necessary.’

As a result of its review, OCR entered into a resolution agreement with the City of Yonkers. The resolution agreement required communicating relevant district policies to appropriate staff and the need to follow them; ensuring that the district document its LRE related student decisions; provide relevant training to relevant school personnel relating to placement and LRE determination; reviewing the placement of all students with disabilities in self-contained settings to insure that such students are classified appropriately and are in an appropriate educational setting and, if it is determined that the student is not in an appropriate educational setting immediately conduct a reevaluation and place the student appropriately and determine whether remedial or compensatory services should be provided to the student; and provide data to OCR to demonstrate compliance with Section 504 in future school years.

MISCELLANEOUS In Re Cent. Dauphin Sch. Dist. -- Pa. State Agency (Oct. 7, 2014) 114 LRP 47648 Dispute: Whether the District discriminated against the student on the basis of disability.

Conclusion: The State Administrative Agency determined that the evidence showed that the district did not discriminate against the student on the basis of disability.

Basis of the Administrative Agency’s Decision: Section 504 of the Rehabilitation Act of 1973 (Section 504) provides in relevant part that “[n]o otherwise qualified individual with a disability, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance …”

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In this case, the student “is identified as a child with a disability pursuant to Section 504 of the Rehabilitation Act of 1973”. The parent asserts that the district discriminated against the student on the basis of his disability in that it “refused to allow the student to participate in a certain activity on account of the student’s medical condition”. Initially, the Administrative Agency concluded that the parent was “really asserting that the [d]istrict failed to provide the [s]tudent with an equal opportunity to participate or benefit from the instruction and achievement offered through the activity of the [s]tudent’s choice”.

After hearing the evidence, the State Administrative Agency determined that the district decided not to allow the student to participate in the wished for activity because “the [s]tudent’s technical skills needed development before [s]tudent could succeed in the activity” and that therefore the district was not failing to provide the student with an equal opportunity to participate or benefit from the instruction and achievement offered by the activity but, instead, because the student was not “otherwise qualified” to participate in the school activity in question.

Regarding the question of reasonable accommodations, the State Administrative Agency concluded that the school district reasonably accommodated the student’s disability by (1) bringing supports to the practice of the activity; allowing the student to sit out but listen to and observe the instruction; offering to meet with the student at other times for individual practice and instruction; providing digital instruction materials to be reviewed at home; and offering to work individually on the activity in question with some students -- including the student in question. With respect to these accommodations, the State Administrative Agency found that the “[s]tudent took advantage of few of these opportunities”.

L.B. v. New York City Dep’t of Educ., 21 CV6626 (VEC), 2023 WL 1779550 (S.D.N.Y. Feb. 6, 2023) Dispute: Whether the parents have stated a claim relating to Section 504 of the Rehabilitation Act of 1973 and the ADA. Conclusion: The Court determined that the parents stated a claim relating to Section 504 of the Rehabilitation Act of 1973 and the ADA. Basis of the Court’s Decision: “To state a claim under the Rehabilitation Act of 1973 and the ADA for educational discrimination against a student with disabilities, a plaintiff must allege adequately (1) that [the student] is a qualified individual with a disability; (2) that [the district] is subject to one of the Acts; and (3) that [the student] was denied the opportunity to participate in or benefit from [the district’s] services, program, or activities, or was otherwise discriminated against by [the district], by reason of his disability”. To plead that the student was denied services because of his disability, “something more than a mere violation of the IDEA…” must be plead. In particular, “facts from which the Court can plausibly infer that [the district] acted in bad faith or with gross misjudgment when administering disability services” must be pled.

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In this case, among other things, the district asserted that the parents “fail[ed] to state claims under the ADA or the Rehabilitation Act because they do not allege that [the student] was treated differently from non-disabled students or denied reasonable accommodations based on his disability”.

The Court found that the parent’s pleadings asserted facts to show that the district failed “to provide [the student] with a high school education for two years”. The Court said that “[s]uch an extensive absence from school purportedly due to [the district’s] violative conduct, which the Court must accept as true for purposes of [the district’s] motion to dismiss, is sufficient for the Court to infer gross negligence or reckless indifference. See Gabel v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp 2d 313, 336 (S.D.N.Y. 2005); R.B. v. Bd. of Educ of City of New York, 99 F. Supp.2d at 411, 414-15, 419 (S.D.N.Y. 2000); Conway v. Bd. of Educ. of Northport-East Northport Sch. Dist., No. 13-CV-5283 (SJS)(WDW), 2014 WL 3828383, at *18 (E.D.N.Y. Aug. 1, 2014).

S.B. and K.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH), 2022 WL 4134457 (Sept. 12, 2022) Dispute: Whether the parents set forth a claim under Section 504.

Conclusion: The Court concluded that the parents did not set forth a claim under Section 504.

Basis of the Court’s Decision: The Court explained that the elements of a Section 504 claim included (1) a showing that the plaintiff is a qualified individual with a disability; (2) that the plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity, and (3) that such exclusion or discrimination was due to the plaintiff’s disability. See B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016). Moreover, “something more than a violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must show that a school district acted with bad faith or gross misjudgment” (Y.D. v. New York City Dep’t of Educ., No 14C1137-LTS, 2016 WL 698139, at *6 [S.D.N.Y. Feb. 19, 2016]).

Here, the Court concluded that there was no reason to engage in a “lengthy analysis” of whether the student was eligible for a Section 504 plan because there was no indication that the district acted with bad faith, gross misjudgment, or deliberate indifference.

The parents argued that the district acted with deliberate indifference because it “consistently failed to identify and evaluate” the student’s eligibility for a Section 504 plan. The Court stated that there was however “no indication that the student was denied a benefit because of her disability. That the district did not evaluate the student even upon the parents’ request, the Court said, did not establish deliberate indifference. Regarding this, the Court pointed out that the district “may have had any number of lawful reasons for its decision not to evaluate [the student] for a Section 504 plan…”. Such lawful reasons, the Court indicated, could have been 630

that the district did not believe that the student needed “one given her academic results and teacher reviews, or that ad hoc interventions such as AIS math tutoring in sixth grade had been effective”.

The Court concluded that the parents’ Section 504 claims were “in actuality merely restatements of their IDEA claims – that [the district] failed to appropriately classify the student” and that Summary Judgment was appropriate. Regarding such a motion, the Court held that it would be in favor of the district “[b]ecause there is no indication in the undisputed record that [the district] acted with deliberate indifference, bad faith, or gross misjudgment with respect to [the student]”.

VIOLATIONS Issue: Section 504

T.H. v. The Archdiocese of New York, 23-CV-2154 (JPO), 2025 WL 370150 (S.D.N.Y. Feb. 3, 2025)

Dispute: Did the district’s actions violate Section 504 Conclusion: The District Court concluded that the district’s actions did not violate Section 504.

Key Take Away: A student and a parent cannot maintain a Section 504 lawsuit charging peeron-peer harassment without showing that the claimed harassment was “severe” and “pervasive” and that the school administrators were “deliberately indifferent” to it.

Reasoning: The minor daughter and her father commenced an action in the United States District Court for the Southern District of New York. The parent and daughter claimed that the district inadequately addressed the bullying of the student from kindergarten through eighth grade in violation of Section 504 and the ADA. The district argued that the discrimination claim “failed” because any bullying against the student did not rise to the threshold level under federal law and that the district was not deliberately indifferent to it if it did.

Because of the similarity of the language of the Section 504 and the ADA laws, the District Court pointed out that the Second Circuit of Appeals had directed courts to “analyze such claims together”. In order to successfully prove a violation of Section 504 and the ADA, the District Court said that it must be shown that (1) the student is a qualified student with a disability, (2) the district is subject to either Section 504 or the ADA, and (3) the student was denied the opportunity to participate in or benefit from the district’s services, program, or activities or was otherwise discriminated against by the district by reason of her disability.

In this case, the student and the parent argue that the district deprived the student of educational opportunities and discriminated against her by insufficiently responding to “peer on peer” harassment. Because the courts in this circuit have not decided what the applicable standard for such harassment under the ADA and Section 504 is, district courts in the Second Circuit have 631

looked to Supreme Court caselaw having to do with “student-on-student bullying” under Title IX of the Education Amendments of 1972.

In its Title IX review of “student to student” bullying, the Supreme Court looks at whether (1) the student was harassed because of his disability, (2) the harassment was so severe, pervasive and objectively offensive that it altered his education, (3) the school district had actual notice of the disability-based harassment and (4) the school was deliberately indifferent to it.

In this case, the district argued thar the harassment of the student was not “severe and pervasive” and that the school district was not deliberately indifferent to the harassment that did occur.

Whether the school’s conduct rose to the level of “severe” and “pervasive”, the District Court again looked at court decisions under Title IX. The District Court concluded that “largely isolated instances of name calling and teasing with only one instance of a likely disability-related insult”, such as what happened here, was not something that would be severe and pervasive.

About the district’s second argument – assuming that the conduct was sufficiently pervasive and severe, whether the district’s administrators were “deliberately indifferent” to such conduct, the District Court looked at authority from the same Title IX Supreme Court case. Such authority advised that “deliberate indifference to bullying … is found where the school’s response was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the [school] itself intended for the harassment to occur”. The District Court concluded that this was not the case. The District Court said that the school took good faith actions to deal with the problems that the student had faced. Further, the District Court pointed out that one of those issues involved a situation which the district had no control over.

The District Court granted the district’s request to dismiss the lawsuit.

A.S. v Mamaroneck Union Free Sch. Dist., No. 21 -CV-6937, 2024 WL 308211 (S.D.N.Y. Jan. 26, 2024) Issue: Did the parent set forth a claim of discrimination in violation of Section 504 or the ADA. Dispute: Does a violation of Section 504 or the ADA lie in circumstances where the record shows that the school district did not act with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Conclusion: A violation of Section 504 or the ADA requires that the record show that the district acted with deliberate indifference, bad faith, or gross misjudgment regarding the student.

Key Take Away: Denial of FAPE is not a 504 or ADA violation, unless the district acted with deliberate indifference, bad faith, or gross misjudgment. In this particular case, the parent did not show that a violation of a free appropriate public education (FAPE) stemming from the District’s failure to comply with relevant State regulations relating to the time out room constituted deliberate indifference, bad faith, or gross misjudgment.

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Reasoning: The student in this case has been diagnosed with ADHD and an Oppositional Defiant Disorder.

During the relevant time period, the student was in kindergarten to the third grade.

The student began kindergarten in the 2017-18 school year in a non-special education program.

At the beginning of the school year, because of his “challenging behavior”, the school referred him for a Functional Behavioral Assessment (FBA) and recommended that “a formal Behavioral Intervention Plan [BIP] be generated”. Among other things, the BIP recommended that “if [the student’s] behavior escalated to a point where he became physical, removal from the environment might be required and that such removal should be executed by a trained staff utilizing a team approach”. If removed, the student “should be moved to a safe location close by, given the opportunity to deescalate, and reintroduced to his class when the team determined he was ready”. The location was called “the peace room”.

The school district’s CSE met in November 2017. It found the student eligible for special education as a student with an emotional disability. During the classroom observation conducted as a part of the CSE’s evaluation, “the student was reported to have threatened to slash a female in the face with a fist full of colored pencils”. A psychiatric report prepared as a result of the student’s initial evaluation “recited the student’s history [to that date] in kindergarten including his cursing at teachers, requiring physical restraints, hitting, biting, kicking and throwing objects in the classroom, threatening other students and trying to stab them with pencils or scissors, and attempting to run out of the classroom”. The CSE also considered a psychiatric evaluation that was provided by the parents and that was consistent with the other information the CSE possessed.

The November 2017 CSE meeting recommended that the student be placed in a special education environment. This included “an integrated co-teaching program with two teachers and a kindergarten aide in the classroom”. Additionally, the student was provided with counseling, a social skills group, psychology consultations with the student’s teachers, and a transition plan to change to the new program. The CSE was concerned that it did not understand what was causing the student’s conduct and wanted to come up with a plan to address that. “At or during the CSE meeting, the school psychologist created a positive behavior reinforcement plan and explained that to the parent. Additional supports were provided to the student during kindergarten which in included the school psychologist meeting with a social worker and the parent “almost on a weekly basis [from October to January] concerning behavioral strategies being used in school to address [the student’s] behaviors”.

During kindergarten, the student’s teachers “would sometimes remove [the student] to the peace room, and need to restrain him". The parents were aware of the use of the peace room and of the use of restraints and were notified when such used. The parents were also aware of the peace room policies and received information about them. The student completed kindergarten in the district’s recommended program.

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The CSE met in March 2018 to develop the student’s IEP for the 2018-19 school year when the student would be in the first grade. Meeting reports indicated that the student was “making good progress in his special education placement, although he was occasionally still engaging in high intensity misbehaviors”. At the meeting, the CSE “elevated the level of [student] support” for the next year. The CSE recommended “an increase in integrated co-teaching from three to four hours a day and a 1:1 aide for six hours and 15 minutes each day to be with [the student] during lessons, meetings, and independent work, and specials, gym, art, lunch, and recess”.

During the first semester of the first grade, the student’s parent “regularly communicated with school staff” and received “reports about [the student’s] behavior”. The mother concluded that although the student “sometimes needed a break or sometimes had to be removed from class” that “things were going reasonably well.” “School staff were optimistic that their interventions were working.”

‘During the second semester of the student’s first grade year, the student “was engaging in disruptive and aggressive behaviors on a daily basis, including trying to leave the class or the school premises, throwing objects in class, refusing to get up off the floor, and kicking, hitting, punching, and biting”. This was communicated to the parent as well as how the district responded.

The CSE met again in March 2019 in advance of the student’s second grade year. The student’s BIP was “updated”. Additionally, “the CSE recommended additional services including having the school psychologist come to the classroom four hours a week to help teachers assist the student”.

After the CSE meeting, and for the balance of the first grade, the student’s behaviors “continued to escalate”. The student was “seriously hurting staff and threatening to do so”. Although the student’s “team” “did their best to provide [the student] with educational programming – including providing instruction in the peace room when [the student] would accept it – but had to scale back and remove demands on [the student} to address the safety concerns caused by his conduct”.

The CSE met next in May 2019. At that meeting, the CSE felt that “some of the strategies being used to address [the student’s] behaviors were instead reinforcing them”. It recommended that the student “be placed in a therapeutic out of district program for second grade because the school could not safely manage his behaviors”. The parents asked the CSE to give the student “another chance” on the basis that his behaviors were “now under control and he would be safe to stay for second grade”, which the district “accommodated”. The district also provided the parent with a list of New York State-approved therapeutic programs. In June, the district “developed an updated FBA and BIP at the parent’s request”.

The CSE met in July of 2019 and reviewed the progress of the search for a “therapeutic out of district placement” for the student. The parent “had not approved either of the two programs she had visited,” one which involved a trial period and wished that the student would be able to attend the district’s school for second grade; this, on the basis that the student had “started 634

taking medication” and that his behavior “had not been a problem” at the summer program he had attended. As an “accommodation” the district agreed that the student could return to school under the program recommended by the March 2019 CSE. This, while the parent continued to look for a therapeutic out of district program. In the event that the parent was unable to find a program that she approved of, and if the student’s behavior “retuned to the level of the preceding year”, the CSE advised that “it would need to recommend pursuit of the therapeutic out of district placement”.

The student’s behaviors continued at the beginning of the 2019-20 school year when the student was in the second grade – including “hitting, threatening, eloping, climbing on furniture, threatening to harm himself, kicking biting, and cursing”. The student was no longer on the medication that he had been taking during the July CSE meeting.

Because of “multiple suspensions”, the district held a further CSE meeting at the end of September 2019 “during which it was reported that [the student’s] negative behaviors had returned to the level of the prior spring; that staff had scaled back academic demands” for the student as otherwise, the student displayed “physically aggressive behaviors that were a safety risk to himself and others; [and] that school staff were unable to help [the student] regulate his emotions”. The CSE concluded that the student “needed a smaller, more structured environment with continuous therapeutic support” and recommended that the student be placed in such a day program. Pending such placement, the CSE recommended that the student either receive “four hours of daily home instruction” or “enroll in a transitional intensive day treatment [IDT] program”. “Following the meeting, the student’s special education teacher, the school psychologist and the parents visited the IDT program. The student attended the IDT program and then was “accepted and transitioned into a therapeutic out of district program … that [the parent] had approved. With new medication, the student “did well” at the new therapeutic day placement.

The student’s mother requested an impartial hearing on October 15, 2019 asserting the violation of the IDEA, Section 504, the ADA and the Regulations of the New York State Education Department. The parent claimed that the district had violated Section 504 and the ADA “by repeatedly excluding [the student] from his classroom and isolating him from his peers because of his disability; failing to provide him with appropriate behavioral interventions as a reasonable accommodation resulting in the denial of reasonable access to the District’s programs, … and insisting that [the student’s] parents accompany him on field trips”. Among other things, the parent sought 405.3 hours of compensatory education.

On March 10, 2021, the IHO found that the student “was not denied a free appropriate public education (FAPE) under the IDEA, Section 504, or the ADA and denied [the parent’s] request for relief”. Regarding the “peace room”, the IHO found “no violations of State regulations”.

Regarding the IDEA, the IHO found that the student’s “educational program was appropriate based on his evaluations” and that no procedural inadequacies impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making 635

process, or cause a significant deprivation of educational benefits. The IHO concluded that “[u]nder Section 504 and the ADA, the student was not denied a FAPE, or excluded from participation in or denied the benefits of the district’s program by reason of his disability”.

The parent appealed the IHO’s decision to the Office of State Review (OSR). Regarding the parent’s claims under Section 504 and the ADA, the SRO pointed out “that it had no jurisdiction to review any portion of the parent’s claims regarding violations of section 504 or the ADA”.

Regarding the parent’s claims about the “peace room” , the SRO held that the district’s policies “did not comply with State regulations, because the policy lacked required specifics such as prohibitions on placing a student in a locked room or a room in which the student cannot be continuously observed; circumstances under which the timeout room may be used; data collection to monitor the effectiveness of the use of the timeout room; information that would be provided to parents; and staff training on the policies and procedures on the use of the timeout room”. Further, the SRO found that “the student’s IEPs did not reference the use of the timeout room or the maximum amount of time the student would need to be in the room as a behavioral consequence”. The SRO also found that, while “well-meaning, the use of the peace room for multiple purposes and in response to varying precipitating factors was itself problematic as the room ultimately might have come to reinforce the student’s escape/avoidance behaviors”.

The SRO further concluded that the use of the peace room resulted in “lost educational time” and a denial of a FAPE.” Regarding physical restraints, the SRO held that there was an “insufficient basis in the hearing record to modify the IHO’s determination that the district’s use of restraints on [the student] was appropriate”. The SRO also found that the district used improper procedures before placing the student in the IDT program”. Regarding the parent’s request for compensatory education, the SRO found that the student was eligible to receive 94.8 hours of compensatory tutoring – a reduction from the requested 405.3 due to the fact that the SRO found a loss of educational time only as a result of the use of the timeout room and the “improper removal” of the student to the IDT program.

The parent commenced this action, asserting a violation of Section 504 and the ADA. Among other things, the parent sought relief asserting the district’s “repeatedly unlawful use of restraints and seclusion” and the student’s consequent inability to access his education for 405.3 hours of time from kindergarten through the end of second grade.

The Court began its analysis explaining that “[t]he ADA and Section 504 both protect qualified individuals with a disability”. The Court further explained that “[b]ecause the standards adopted by the two statutes are nearly identical, courts in this circuit consider the merits of these claims together”. Regarding this, a “[a] plaintiff asserting a discrimination claim under the ADA or Section 504 must show that (1) plaintiff is a qualified individual with a disability, (2) plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion or discrimination was due to plaintiff’s disability”. The Court advised that “discrimination can include the failure to provide a reasonable accommodation”. In this case, the Court said that “there is no dispute that [the 636

student] is a qualified individual with a disability or that the district is a public entity subject to the ADA and Section 504.”. The Court pointed out that in the special education context, “an ADA or Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate public education as compared to the free appropriate public education nondisabled students receive”. However, “because the ADA and Section 504 address discrimination against disabled students rather than incorrect or erroneous special education treatments, a plaintiff challenging a school district’s response to his disability can succeed only by demonstrating that a school district acted with bad faith or gross misjudgment.” The Court noted here that “courts have equated gross misjudgment with deliberate or reckless indifference”.

In this case, the “plaintiff argues “that the District discriminated against [the student] by (1) inappropriately using the time out room, (2) developing inappropriate behavioral programing, and (3) inappropriately using restraints”. The Court noted that while the SRO found that the use of the time out room “did not comply with State regulations and thus its use of that room deprived [the student] of a FAPE”, this “does not alone establish deliberate indifference” and that given that the student’s “behavior sometimes required his removal from the classroom” and that the student “was placed in the time-out room for physical safety reasons”, the violations of the time out room-related regulations “simply [do] not rise to the [required] level of deliberate indifference to the student’s needs”. “Likewise,” the Court said while “the removals negatively impacted [the student’s] educational programming and may have reinforced his maladaptive behaviors” may have shown that the district could have made “better or different decisions” it does not show that the District “appreciated that it was likely violating [the student’s] rights but did not care”. Further, the Court concluded that the plaintiff had not shown that “the district was deliberately indifferent in its development of behavioral programming or its use of restraints”.

Regarding this, the Court pointed to the District’s “close attention to [the student’s] needs through constant meetings, communications, adjustments …”; that “[s]chool personnel acted diligently and thoughtfully” regarding the student; “kept in close contact with his parents; met with them regularly to discuss the student’s behavior and how it could be addressed, carefully considered the reports and other information provided, made modifications in attempts to improve the situation; and accommodated [the parent’s] request” to have the student “remain at the school” notwithstanding the CSE’s view that the student “needed a therapeutic out of district program”. The Court said that “[t]he record shows, as the SRO held that the district’s intentions were well-meaning, appropriate and thoughtful – “a mindset inconsistent with a claim of deliberate indifference”. The Court concluded that “plaintiff has not provided evidence from which a rationale factfinder could conclude that the District intentionally discriminated against [the student] in violation of Section 504 or the ADA”.

The Court granted the school District’s request to dismiss the parent’s case.

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Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) Dispute: Did the plaintiff state a claim for a violation of the ADA and Section 504.

Conclusion: The plaintiff did not state a claim for the violation of the ADA and Section 504.

Basis of the Court’s Decision: The student in this matter has been diagnosed with Down Syndrome.

The parent’s consolidated amended complaint (CAC) alleges violations of, inter alia, the ADA and Section 504 of the Rehabilitation Act of 1973. Such claims are based upon allegations of “a failure to provide” reasonable accommodation to the student for the 2020-2021 school year.131 The Court first pointed out that “[t]he standards governing claims under the ADA and Section 504 are identical” and so they are to be considered “in tandem”.

“To make out a prima facie case under the ADA or Section 504, a plaintiff must show that he is a qualified individual with a disability; (2) that the defendants are subject to the pertinent statute; and (3) that he was denied the opportunity to participate in or benefit from defendants’ services, programs or activities, or was otherwise discriminated against by defendants, by reason of his disability”.

Importantly, “[w]here a plaintiff asserts denial of a FAPE, there must be evidence that the school district acted with deliberate or reckless indifference to the student’s federally protected rights or with bad faith or gross misjudgment”.

In this case, “[t]he parties do not dispute that [the student] is disabled under the terms of the ADA and Section 504 or that the district is covered by these statutes”. At issue here “is whether the CAC plausibly alleges that defendants failed to provide reasonable accommodations to [the student] or discriminated against [the student] because of his disability, and thereby acted with deliberate or reckless indifference or bad faith or gross misjudgment”.

As a result of pendency, among other things, the student received his “special services daily in the school district followed by his special education instruction in the local public library”. At the beginning of the 2020-21 school year the library closed because of the COVID-19 Pandemic. The plaintiff alleged a denial of Section 504 and the ADA’s reasonable accommodation’s requirements on his claim that “despite the fact that the existing pendency agreement called for the defendant school district to seek an alternative educational placement for [the student] during the times in which the local library was closed and his home was unavailable, the 131 This is the parent’s “second bite of the apple”. Regarding this, as indicated above, by order, the Court had earlier dismissed the parent’s claims that the student had been discriminated against in violation of Section 504 and the ADA. However, the Court dismissed the parent’s claims without prejudice. The parent’s amended his complaint with additional allegations. As indicated above, the Court set forth that the amended complaint also did not set forth a claim of discrimination under the ADA or Section 504 of the Rehabilitation Act of 1973.

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defendant school district failed to research or offer a single alternative site,” resulting in the parties being at “an impasse,” and “that therefore [the student] was denied a reasonable accommodation.” The parent “contend[ed] that the defendants’ failure to provide the physical space necessary to accommodate a single desk and a chair for the [student’s] instruction illustrates reckless indifference, gross bad faith, and gross misjudgment”.

The Court disagreed. It explained that in relevant part the student’s pendency placement provided that (1) the student would “receive his special services daily in the district”; (2) this would be “followed by his special education instruction in the local public library”; and (3) “in the event the library [was] closed for a period exceeding 7 days and the student’s home [was] unavailable, the parties will seek in good faith to orchestrate another, alternative off-site placement location.”

As it had in its earlier order, the Court pointed out that the parent’s position “rests upon the inaccurate contention that [the pendency] agreement required the district, solely, to seek an alternative educational placement for [the student] during times in which the local library was closed more than 7 days and [the student’s] home was not available”. Like its first order, the Court pointed out that after the library had closed for the school year, the district had tried to provide services in the student’s home but was unsuccessful in doing so because of the parent’s requirements. The Court repeated what it said in its prior order which was that when the library and the parent’s home was not available the parent could not insist that anything “short of having [the student] physically present in the district for his special education instruction would be [un]acceptable”. The Court repeated what it had said before which was if the library and the parent’s home were not available, pendency required that “[t]he parties are to arrange for an alternative, off-site location.”

With respect to the pendency requirement that “the parties [were] to arrange for an alternative, off-site location, the Court advised that this portion of the pendency agreement (1) applies to both parties; (2) calls for the parties to seek a placement location that is off-site and; (3) requires the parties to seek said location in good faith”. With respect to (1) above, the Court added that this meant that “the parties were to work together – presumably, cooperatively – to identify an alternative, off-site location”. With respect to (2) above, the Court further pointed out that the parent’s claim relative to the need for only a desk and chair was “irrelevant” as the pendency agreement “contemplated an off-site location”. Finally, and with respect to (3) above, the Court said that “there were no allegations that the plaintiff acted in good faith -- on his own or with the [district] -- in seeking an alternative off-site location”.

The Court further said that “to the extent, [the parent] alleges that the district failed to investigate or secure an alternative and appropriate placement situs in support of his discrimination claims, his allegations [were] conclusory, without any factual allegations which would establish the plausibility of those claims”.

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The Court concluded that “while the student’s impasse characterization [was] generally accurate, and his allegations would support this position, plausibly alleging an impasse [did] not compel the conclusion that the district acted with deliberate or reckless interference to [the student’s] federally protected rights or with bad faith or gross misjudgment”. Consistent with this, the Court said that “upon careful[] review of the CAC, [it found] that the CAC [did] not allege facts that plausibly supports plaintiff’s conclusory allegations of discrimination by [the district] based upon [the student’s] disability.

Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023) Dispute: Whether the parent set forth a violation of Section 504 of the Rehabilitation Act of 1973 or the ADA. Conclusion: The Circuit Court agreed with the District Court and concluded that the parent did not set forth a violation of Section 504 of the Rehabilitation Act of 1973 or the ADA. Basis of the Court’s Decision: The District Court concluded that the parent failed to assert a prima facie claim under the ADA or the Rehabilitation Act. The Circuit Court agreed. It pointed out that “to make a claim under either statue, the parent must show that (1) the student is a qualified individual with a disability, (2) defendants are subject to one of the Acts and (3) the student was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities or was otherwise discriminated against by the defendants because of his disability”. The Court further pointed out that “under both statutes a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual to have access to and take a meaningful part in public services”. However, “[a] plaintiff alleging that be was denied a reasonable accommodation bears the burdens of both production and persuasion as to the existence of some accommodation that would allow him to meet the essential eligibility requirements of the service, program, or activity at issue”.

The Court said that “as an initial matter”, the parent failed to adduce sufficient evidence that [the student] was discriminated against due to his disability” and that what the plaintiff did, which was to merely point to a violation of FAPE, was insufficient.

Further, the Court said that the parent did not “as he must” show that his proposed accommodation -- here the student’s placement in the district’s middle school – was reasonable.

In fact, the Court pointed out that the parent conceded that implementing the student’s IEP as envisioned was not possible in an existing program and further, did not provide any nonconclusory evidence that the student’s placement in the public school in a newly developed program or in a mainstreamed classroom was possible, let alone reasonable. Consistent with this, the Court referenced that the ADA imposes liability for, among other things, “discriminatory refusal to undertake a feasible accommodation not mere refusal to explore possible accommodations where, in the end, no accommodation was possible”.

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SECTION 1983 Issue: Section 1983

DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025)

Dispute: did the parent state a claim that the district had violated Section 1983 Conclusion: The District Court concluded that the parent stated a claim that the district had violated Section 1983.

Key Take Away: A violation of Section 1983 is shown where a parent claims “systematic violations” that are not able to be addressed by the IDEA’s administrative procedures. In this case, the district had a systemic policy of refusing to offer 1:1 instruction or ABA therapy in students’ IEPs absent litigation.

Reasoning: At the time that the parent went to Court, the student was an eleven-year-old boy who had been diagnosed with autism.

Over the course of the 2017-2018 through the 2023-2024 school years, the student had numerous difficulties with the district. Among other policies and practices, the parent claimed that the district had “a policy and practice” of not offering ABA services and 1:1 services in students’ IEPs, absent litigation.

The parent went to federal district court and charged that the district was in violation of the IDEA and Section 1983 for this policy and practice. The district argued that the parent could not bring the lawsuit. It argued that “where IDEA and Section 1983 claims are brought simultaneously, [a parent] must prove that a constitutional violation occurred outside the scope of the IDEA”.

The District Court explained that Section 1983 was “not itself a source of substantive rights, but a method of vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” The District Court said that “[t]o prevail in a 1983 [lawsuit] [one who brings the lawsuit] must establish that they were deprived of a right secured by the Constitution or laws of the United States without due process of law, and that the alleged deprivation was committed under color of state law.” The District Court explained that “the denial of a free appropriate public education has been held a constitutional right which is [a violation] under Section 1983”. The District Court further explained that the guarantees of the IDEA are guarantees of “protected property rights”. The District Court went on to say that Second Circuit courts have determined “that a Section 1983 claim may be predicated upon the … deprivation of rights under the IDEA”. Regarding “liability” under Section 1983, the District Court pointed out that a government is subject to such so long as the one who brings the lawsuit 641

“demonstrates the existence of a municipal policy that causes the plaintiff to be subjected to the deprivation of a federal right”. The District Court further pointed out that the courts have defined a number of circumstances that show the existence of a municipal policy.

The District Court then addressed the district’s argument that “where IDEA and Section 1983 claims are brought simultaneously, a plaintiff must prove that a constitutional violation occurred outside the scope of the IDEA”. It pointed out, however, that the district also acknowledged that a “plausible due process claim may arise pursuant to 1983 where a plaintiff alleges systematic violations that are not redressable by the administrative proceedings”. The Court pointed out that this was the case here as the parent “alleg[ed] factual allegations supporting the inference that [the district] had a systemic policy of refusing to offer 1:1 instruction or ABA therapy in students’ IEPs absent litigation. The District Court said that this showed “the deprivation of a free appropriate public education that the IDEA’s administrative procedures could not address” and that the parent’s statements therefore properly supported her Section 1983 claim.

The District Court concluded that the parent’s claim that the district’s systemic policy of not providing ABA services or 1:1 instruction in students’ IEPs absent litigation properly raised a violation of Section 1983.

DF v. New York City Dep’t of Educ., 24-cv-3087 (LJL), 2025 WL 1425752 (S.D.N.Y. May 16, 2025) Issue: Section 1983 Dispute: did the District Court have the power under Section 1983 to enforce orders of an IHO that were not complied with by the district.

Conclusion: The District Court has the power to order enforcement of IHO orders under Section 1983.

Key Take Away: A parent is allowed to go to federal court under Section 1983 to enforce an order of an IHO that is not being complied with by a district.

Reasoning: At the time that the parent went to federal court, the student was an eleven-year-old boy who had been diagnosed with autism.

Over the course of the 2017-2018 through the 2023-2024 school years, the parent filed a number of due process complaints about the district’s conduct. As a result of this, IHOs issued orders in favor of the parent. A number of these IHO orders were not complied with. These included that (1) compensatory services ordered by an IHO were not provided, (2) the district failed to turn over records that it had been ordered to do so by an IHO, and (3/) services and programs were ordered to be provided by an IHO including ABA services and the assignment of a 1:1 aide but this was not done.

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The parent then filed a lawsuit in the Southern District of New York to enforce the IHO’s orders.

The District Court was clear that it “ha[d] the authority to issue an order to enforce the terms of an IHO’s order awarding services”. The District Court explained that it had the power to do so under Section 1983 and ordered that the IHO’s orders be followed.

T.S. v. Bay Shore Union Free Sch. Dist., 23-cv-3217(DLI)(RML), 2024 WL 4362601 (E.D.N.Y. Sept. 30, 2024) Issue: Violation of a student’s right to privacy protected by the substantive due process clause of the Fourteenth Amendment brought under Section 1983 of federal law.

Dispute: Did the actions of the student’s teacher, in identifying the student by name and in sharing other confidential health information including information from his IEP without consent outside the school, violate the student’s privacy rights protected by the substantive due process clause of the Fourteenth Amendment brought under Section 1983 of federal law.

Conclusion: The actions of the student’s teacher, in identifying the student by name and in sharing other confidential health information including information from his IEP without consent outside the school, violated the student’s privacy rights protected by the substantive due process clause of the Fourteenth Amendment brought under Section 1983 of federal law.

Key Take Away: A teacher’s sharing of a student’s private health information, including his name, confidential health information including information from his IEP, without consent is a clear violation of the student’s federally protected privacy rights and in particular his substantive due process rights under the Fourteenth Amendment to the United States Constitution brought under Section 1983 of federal law.

Reasoning: The student has Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, anxiety and Auditory Defensiveness. He was in the eighth grade at the time of the actions here.

The student’s social studies teacher, who was also an author and public speaker, published an article in an online journal. The article contained, without consent, the student’s full name, information about the nature and symptoms of his medically diagnosed disabilities, information about his IEP, and the accommodations he received for his disabilities. The article was widely circulated on the internet and on the author’s Twitter account. The information reached tens of thousands of people.

The parent and student started an action in the United States District Court of the Eastern District of New York to challenge this behavior. The parent’s legal papers also said that the article “caused psychological, emotional, and financial distress”. The student’s and the parent’s legal papers sought damages from the district and employees, including the social studies teacher.

The parent and the student argued that the school district and its employees violated the student’s “right to privacy” protected by the Fifth and Fourteenth Amendments brought under 643

Section 1983 of federal law. A claim brought under Section 1983 of federal law protects a citizen’s right to substantive due process under the Fifth and Fourteenth Amendments. The Fourteenth Amendment’s due process clause protects against actions of state and local governments. The Fifth Amendment’s due process clause protects against actions of the federal government.

The District Court first took up the question of whether the parent had an independent claim against the social studies teacher brought under Section 1983 of federal law. The District Court pointed out that a party to a legal dispute in court “cannot assert the rights of a third-party”. The District Court rejected the parent’s arguments that the release of the information about the student violated the parent’s right to decide about the student’s education or that of the parent’s other constitutional rights. The District Court determined that the parent therefore lacked “standing” on his own behalf. For the same reason, the District Court dismissed the parent’s due process claims against the other district defendants.

Next, the District Court looked at the legal papers to see if they charged violations of the student’s right to privacy under the Fourteenth Amendment sufficient to be brought under Section 1983 of federal law. The District Court was clear that the Fourteenth Amendment protects a right to privacy/confidentiality about one’s health and that information about psychiatric health is “information of the most intimate kind”. Contrary to the social studies teacher’s claim, the District Court rejected the argument that the actions did not “shock the conscious” necessary for a substantive due process claim. It concluded that the legal papers showed that the student’s privacy and constitutional rights were “clearly” violated.

The social studies teacher argued that the parent’s and student’s Fifth Amendment due process claims depend on a “federal actor” and that no defendant was a “federal actor”. The District Court agreed and dropped the parent’s and student’s Fifth Amendment due process claims.

The social student’s teacher also said that “qualified immunity” prohibited the student’s Fourteenth Amendment claim brought under Section 1893 of federal law. The District Court explained that qualified immunity protects “government officials from liability for civil damages insofar as the conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known”. The District Court decided that this argument did not apply because the privacy interest in personal medical information had long been recognized and that therefore the social studies teacher should have known that her acts were unlawful and were not “objectively” reasonable. 132

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See Pearson v. Callahan, 555 U.S. 223, 231 (2009); Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996).

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Killoran v. Westhampton Beach Sch. Dist., 20 CV 04121 (JS)(LGD), 2023 WL 5532920 (E.D.N.Y. 2023) Dispute: Did the plaintiff state a cognizable Equal Protection-based 1983 claim.

Conclusion: The plaintiff did not state a cognizable Equal Protection-based 1983 claim.

Basis of the Court’s Decision: The student in this matter has been diagnosed with Down Syndrome.

“The Equal Protection Clause mandates that the Government treat all similarly situated people alike”. Importantly, “[t]he protections afforded by the Equal Protection Clause extend to individuals who allege no specific class membership, known as class-of-one claims, where the plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment”. “To prevail on a class-of-one claim, the plaintiff must point to at least one other individual whose circumstances, aside from being treated more favorably than the plaintiff, are prima facie identical in all other respects.

Regarding this, “general allegations of prima facie identicalness are too conclusory to plausibly allege the extremely high degree of similarity required to state a cognizable class-of-one claim”.

“In support of his class-of-one claim, [the parent] alleges that other than an age-disparity, [the student] profiles as being similarly situated to the other alternatively assessed special education students being educated within the defendant school district”.

Upon review of the justifications for the student’s putative class-of-one claim the Court found that the parent’s allegations were either “too conclusory” or failed to demonstrate that the claimed “comparators” was “similarly situate”.

The above being the case, the Court dismissed the student’s Section 1983 Equal Protection Claim.

SECTION 3602-C: DUAL ENROLLMENT Application of the Dep’t of Educ., Appeal No. 24-141 (May 17, 2024) Issue: Section 3602-c; Dual enrollment Dispute: Whether the Burlington/Carter analysis applies to situations relating to individualized education services programs (IESPs) and “dual enrollment” students under New York State law Conclusion: The Burlington/Carter analysis applies to situations relating to IESPs and “dual enrollment “students defined by State law.

Key Take Away: Situations involving dual enrollment students and IESPs under New York State law face the same rules that apply to students with disabilities under the federal IDEA and further, the parent has the burden of showing the parent selected program is appropriate.

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Reasoning: New York State students who are eligible for special education services and attend a non-public school at their own expense may receive an individualized education services program (IESP) under the State’s ‘dual enrollment’ statute.” See Educ. Law 3602-c133. The student’s home district’s Committee on Special Education (CSE) designs the educational programming for these students. All the procedures that apply to students with disabilities under the IDEA apply to these students too. Educ. Law 3602-c.

The student here is five years old and is eligible for special education as a student with a speech or language impairment. The student attended a nonpublic religious school. The CSE created an IESP. The parents notified the district that they were placing the student in a nonpublic school at their own expense but asked that the district continue to provide the student special education services for the 2023-24 school year.

The parents filed an amended due process complaint notice alleging that the district denied the student a FAPE and failed to provide appropriate equitable services 134 to the student for the 2023-24 school year. The due process complaint notice also said that the parent independently hired a provider when the district allegedly failed to provide services. For relief, the parents wanted the school district to pay the student’s SEIT provider/agency for the services they had provided and which were included in the student’s IESP for the 2023-24 school year.

During the impartial hearing, the parents asserted that the Burlington/Carter reimbursement test should not apply. The district disagreed. The IHO determined that the Burlington/Carter analysis was not an appropriate standard to apply in this situation and that the burden remained with the district to prove that the services provided were inappropriate, not on the parent to show that the services were appropriate.

The IHO further determined that the district did not meet this burden and ordered the district to pay a licensed/certified provider of the parents’ own choosing according to the IESP for services provided.

The district appealed to the State Review Officer (SRO).

The SRO pointed out that the student’s parents were seeking reimbursement for private services they obtained unilaterally because the district failed to implement the student’s special Dual-enrollment means that a student is voluntarily enrolled by a parent in a nonpublic school but at the same time the student is also enrolled in the public school district.

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“[P]roviding services on an equitable basis means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or non-public schools located within the school district”.

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education services, they were not seeking tuition reimbursement for attendance at the private school.

In deciding whether the parents are entitled to public funding of the costs of the private services the SRO rejected the IHO’s decision and decided that the Burlington’s three-part test applied to dually enrolled students. The test, the SRO said, made retroactive reimbursement contingent on (1) the inadequacy or inappropriateness of the district’s services, (2) the appropriateness of the services selected by the parents, and (3) equitable considerations supporting the parents’ claims.

The SRO addressed the IHO’s arguments one by one.

The IHO had argued that the Burlington/Carter analysis did not apply here because it should only be applied in matters involving an IEP, not an IESP. The SRO disagreed. The SRO said that the courts have not explained what alternative analysis to use when a parent seeks to recover the costs of privately obtained special education services from the school district before getting a decision that a school district failed to provide services pursuant to an IESP. Further, the SRO said, the approaches used by IHOs in support of the opinion that the Burlington/Carter analysis was not appropriate were “not consistent”.

The IHO in this case decided the Burlington/Carter scenario was not appropriate because it could be distinguished based on the facts and the type of relief sought. Here, the district failed to implement an IESP that the parents agreed with. There was no issue regarding the failure to develop an appropriate IEP. The parents here were also seeking reimbursement for services, not reimbursement for private school tuition. The SRO determined that it was not important that the Burlington and Carter cases were IEP disputes.

The IHO relied on the Supreme Court’s decision in Burlington and highlighted that the decision stated that the purpose of the Act was to give children with disabilities an appropriate and free education. The SRO pointed out that the Supreme Court “did not find that placing a burden on the parent to prove appropriateness of a unilateral placement was defeating the objectives of the statute”. The SRO concluded here that placing the burden on a dually enrolled parent to explain why they should be entitled to reimbursement of services that they obtained without getting the consent of the school district does not depart from the objectives of the IDEA. Finally, the SRO said that the most important factor is whether the parent engaged in self-help and obtained relief simultaneous with the violation (i.e., the Burlington/Carter scenario) or whether the relief is anticipated in nature with the purpose to fix a past harm (i.e., compensatory education)”. The SRO indicated here that the first scenario applied here. The SRO determined it is inappropriate to make the district explain why the services are appropriate when the parent selected the private company and got its services and was therefore the party who had the evidence. Therefore, in such a case, the SRO said, “the parent has the burden to establish whether the private company [] provided appropriate special education services to the student”.

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In conclusion, the SRO held that dually enrolled students “can obtain retroactive reimbursement from the school district after the IESP dispute is resolved” if they satisfy the Burlington/Carter three-part test. Further, in such a circumstance, the parent must show that the program selected by the parent is appropriate and it is not the district’s responsibility to show that the program selected by the parent is inappropriate.

SERVICE ANIMALS C.B. by and through P.G. and D.G. v. Saucon Valley Sch. Dist., No. 5:21-cv-03956 (E.D. Pa. Nov. 18, 2021) Dispute: Whether George, the dog at issue, was a service animal in accordance with law and whether the Court should enter a preliminary injunction requiring the district to allow the dog to attend school with the student.

Conclusion: The Court held that George was a service animal in accordance with law and that the Court would enter a preliminary injunction requiring the district to allow George to attend school with the student.

Basis of the Court’s Decision: The student is currently a junior in high school. She “has been diagnosed with numerous injuries including intractable complex partial epilepsy, dyspraxia (also known as developmental coordination disorder), and cerebral palsy” as well as an anxiety disorder. In addition to these diagnoses the student suffers from an eye impairment “which was worsened by a head injury she sustained during gym class in 2018”. The student’s “everyday life has been altered because of her disabilities”. For example, “she has an uneven gait and poor stamina”, “she has trouble communicating and understanding the difference between safe and dangerous choices”. “She cannot cross the street without a responsible adult with her”. “She also has a history of and continued risk of experiencing seizures at any time” The student’s doctor recommended that the student obtain a service animal “to help the student function in her day-to-day life”. After saving for a number of years, the student’s parents applied for a service animal from a private, not-for-profit organization. The organization had trained more than 1,000 dogs to be service animals. After application, the student was “paired” with George, an American Kennel Club standard poodle. “George received more than 1500 hours of training and 9 months of public access exposure”. Additionally, the organization also trained the student and her parents on how to handle George. This included a 12-week course where the student and her parents participated in more than 40 hours of hands-on training with George.

On the basis of the training, the organization certified George as a “task trained service dog” and the student as a “certified handler”.

George “is trained to perform six tasks” to assist the student. These include “mobility assistance”, “Deep Pressure Therapy”, “to mitigate [the student’s] anxiety”, “to detect when [the student’s] 648

cortisol levels fluctuate”, “seizure response”, and “additional medical alert and response for [the student].

After an IEP Team meeting at which the student demonstrated her ability to handle George and numerous email conversations, the district denied the student’s request that George be allowed to assist the student in school. The basis of the district’s decision was the position that George did not qualify as a service animal.

The student’s parents commenced a federal court action asserting violations of Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA). As a follow-up, they sought a preliminary injunction so that the student and George would be able to attend the district’s school together.

To be successful in a motion for a preliminary injunction, the movant must show “(1) a likelihood of success on the merits, (2) a likelihood of suffering irreparable harm without the injunction, (3) that the balance of equities weighs in the moving party’s favor, and that (4) the public interest favors the injunction”.

The Court cited case law to the effect that “in the context of service animals, it constitutes discrimination under [Section 504] to the same extent as under the ADA to refuse to permit disabled individuals to be accompanied by service animals”. And further that “a disabled individual’s proposed accommodation of the use of her service animal is reasonable under the ADA as a matter of law”.

In this case and as indicated, the only dispute is whether George is a service animal. According to 28 CFR 35.104 “[w]hether an animal qualifies as a service animal is a two-part test”. First, under that regulation “the animal must be individually trained to do work or perform tasks for the benefit of the individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability” and second, under the same regulation, “the tasks performed by the animal must be directly related to the individual’s disability”. With respect to this, qualifying tasks include assisting an individual during a seizure and providing physical support and assistance with balance and stability to individuals with mobility disabilities”. On the other hand, according to the regulation, merely providing “emotional support, comfort, or companionship” does not make a service animal. Regarding this, and contrary to the district’s claim, the Court found that George’s ability to provide the student with the mitigation of her anxiety disorder went beyond simple emotional support. The Court further concluded that George’s other tasks “are classic examples of tasks performed by legitimate service animals”. Relating to this, the Court pointed out that George provided the student with “mobility assistance”. The Court also found “that George’s ability to detect and alert to seizures” is “directly related to at least one of [the student’s] disabilities”.

The Court also found that the student would suffer irreparable injury if the preliminary injunction were denied. In this regard, and among other things, the court recited case law that “[c]ompensation of money can never atone for deprivation of a meaningful education in an 649

appropriate manner at the appropriate time”. The Court “determine[d] that the student met her burden under the second factor” in that “[the student] has a right to an equal education to that of her peers and will suffer irreparable harm if she is denied in-person attendance with George”.

The Court concluded that “attending school without George puts [the student’s”] health at risk and because other alternatives deny her the chance of making meaningful progress in her education”.

Regarding the balance of the equities, the Court stated that the “benefits to [the student] are apparent, primarily that she would continue in person education during very formative years under George’s watchful protection” and pointed to the fact that the district made no argument of any kind as to “how it would be harmed if George attended school with [the student] or what burden George’s presence would cause” That being said, the Court concluded that “the balance of equities weighs in favor of granting [the student’s] request for a preliminary injunction”.

Citing to relevant case law, the Court concluded that “[s]ince [the student] has demonstrated a likelihood of success on the merits and that she will suffer irreparable harm if kept from attending school with George, the public interest weighs in favor of granting [the student’s] motion for a preliminary injunction”.

The above being the case, the Court found that entering a preliminary injunction in favor of the student so that George would be able to provide the student with assistance at school was appropriate, and granted the student’s request for such relief.

STATUTE OF LIMITATIONS TOLLING Boffa v. Banks, 23 Civ. 7596 (AT), 2025 WL 327381 (S.D.N.Y. Jan. 29, 2025) Issue: tolling of statute of limitations Dispute: Was the statute of limitations tolled (not in effect) such that the parent’s claim was able to proceed.

Conclusion: The District Court decided that the statute of limitations was tolled such that the parent’s claim could proceed.

Key Take Away: A parent may “reach back” years after the expiration of IDEA’s 2-year statute of limitations if the parent did not know or had no reason to know of the conduct being complained of. In this case, the parent was able to raise questions about the adequacy of evaluation and vision services going back to the 2009-2010 school year in a due process complaint filed in July 2020 because the parent had only learned within the last two years of the student’s severe visual impairment.

Reasoning: 650

The student in this matter has a range of severe mental and physical impairments and is eligible for special education.

From the 2009-2010 through the 2019-2020 school years the student attended a specialized district school. In January 2020, the CSE developed an IEP for the 2020-2021 school year and recommended a program for the student in the same specialized district school. The parent disagreed with the recommendation and in June 2020, gave timely notice, and enrolled the student in a private school for the 2020-2021 school year. In July 2020, the parent filed a due process complaint. She argued that the district failed to provide the student a FAPE during the 2009-2010 through 2020-2021 school years. In autumn 2020, the student’s private school found that the student “possessed indications of cortical visual impairment (CVI) a neurological processing disorder that impacts one’s vision”. In April 2021, the CSE met again and developed a program for the student for the 2021-2022 school year at a specialized district school. In July of 2021, the parent filed a further due process complaint for the 2021-2022 school year and reenrolled the student in the private school. In November 2021, a private hospital evaluated the student. The evaluator recommended that the student be considered blind and receive full vision services. In February 2022, the district evaluated the student and recommended that she receive full vision services by a trained vision instructor twice a week for 30 minutes a session.

The due process complaints were joined together before a single hearing officer. In May 2023, the IHO issued a decision. The IHO concluded that the district’s “failure to identify or address [the student’s] vision-related deficits during [the 2009-10 through 2021-2022 school years] denied the student a FAPE and constituted a gross violation of the IDEA”. However, the IHO also concluded that any claims concerning school years 2009-2010 through 2017-2018 were time barred by the IDEA’s two-year statute of limitations. The IHO found that the parent was eligible for tuition reimbursement and transportation for the 2020-2021 and 2021-2022 school years.

The district appealed to the SRO the IHO’s decision that the student was denied a FAPE from school years 2009-2010 through 2017-2018. The district did not appeal the IHO’s award of tuition reimbursement for the two years the student spent at the public school. The SRO concluded that any finding by the IHO about the denial of a FAPE during the period barred by the statute of limitations was improper.

The parent then started a lawsuit in the United States District Court for the Southern District of New York. She asked that the District Court overturn the SRO’s decision. Both parties asked that the District Court find in their favor.

The District Court looked at the statute of limitations. The District Court pointed out that under the IDEA, a parent may file a due process complaint asserting a violation “that occurred not more than 2 years before the date the parent ... knew or should have known about the alleged action that forms the basis of the complaint”. Here, the parent argued that the statute of limitations was tolled (not in effect) until November 2021 when she first obtained an eye exam for her daughter and learned that the student was legally blind. The District Court agreed. It said that 651

“families should not be blamed for not being experts about learning disabilities”. The District Court also said that the district pointed “to no evidence suggesting that [the parent] knew or should have known about the severity of [the student’s] vision problems before she enrolled [the student in the private school] …” The District Court further said that “nor [did] the parent’s preexisting knowledge that [the student] suffer[ed] from global delays suffice to put [the parent] on notice of the specific statutory violations at issue”.

The Court concluded that “because [the parent] did not have reason to know about [the student’s] blindness until September 2021, [the parent’s] claims reaching back to school year 2009-2010, to the extent they concern [the district’s] failure to provide [the student] with visionrelated services, are not precluded by the IDEA’s statute of limitations”.

Phillips v. Banks, No. 23-362, 2024 WL 1208954, (2d Cir. Mar. 21, 2024) Issue: statute of limitations Dispute: In this case, did IDEA’s two-year statute of limitations preclude a finding that limited compensatory education to the two-year period prior to the date of the filing of the due process complete notice.

Conclusion: In this case, the IDEA’s two-year statute of limitations precluded a finding that the student should recover for a violation of FAPE more than two years prior to the filing of the parents’ due process complaint notice.

Key Take Away: Except in the presence of the statutory exceptions, a student may not recover for a denial of a FAPE prior to two-years from the date of the parents’ filing of a due process complaint notice.

Reasoning: The student in this case has received special education as a student with multiple disabilities. The student attended special education public school from 2006 until January 2020, at which time the parents unilaterally placed him at a private school.

The parents filed a due process complaint notice on April 29, 2020. They asserted that the district failed to provide the student with a FAPE for the entirety of his school career from 2006-2007 to the 2019-2020 school year. “[The parents] sought tuition and services reimbursement for [the student’s] attendance at [the private school] for the 2019-2020 school year as well as compensatory services, including funding for the student to attend [the private school] for twelve years of extended education”.

“An IHO dismissed all claims before the 2017-2018 school year as time-barred under the IDEA’s two-year statute of limitations and denied the remainder of [the parents’] complaint”. “On appeal, the SRO concluded that the district denied [the student] a FAPE during the 2017-2018 school year but otherwise upheld the IHO’s determinations...” “The SRO awarded 16 hours of

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compensatory occupational therapy services for [the parents’] claims that accrued on or after April 30, 2018, which were not time-barred”. “[The parents] … brought suit in the district court seeking review of the SRO’s determination. The district court deferred to the SRO’s determinations and granted [the district’s] motion for summary judgment”.

The parents appealed to the Court of Appeals. Among other things, the parents challenged the district court’s conclusion that “[the parents] were entitled to a compensatory award only for their claims that accrued on or after April 30, of the 2017-2018 school year”. In particular, they argued that the statute of limitations should toll for 6 months because [the district] allegedly created the IEP for the 2017-2018 school year six months late”.

Upon review of the district court’s decision, the Court of Appeals pointed out that “[t]he IDEA requires parents to file a due process complaint within two years of the date the parent … knew or should have known about the alleged action that forms the basis of the complaint”. See 20 U.S.C. 1415(f)(3)(C). The Court further pointed out that the parents did not allege the presence of the two statutory exceptions to this rule; an exception from the two-year review period due to specific misrepresentations by the [district] or [the district’s] withholding of information from the parent”. Indeed, the Court said that the parents “do not dispute that they could have discovered any claims arising from the IEP prepared for the 2017-2018 school year in November 2017, when [the parents’] attended the CSE meetings and were informed of the IEP”. With that in mind, the Circuit Court concluded “that it agree[d] with the SRO that [the parents’] claims for the 2017-2018 school year [were] time-barred except their claims for implementation of homebased occupational therapy accruing after April 30, 2018”.

P.C.R. and A.D.R. v. Fla. Union Free Sch. Dist. and Orange Ulster Bd. of Coop.

Edu. Services, No.16-CV-9778 (KMK), 2022 WL 337072 (S.D.N.Y. Feb. 4, 2022) Dispute: Whether the parents’ claim was barred by the statute of limitations Conclusion: The Court decided that the parents’ claim was barred by the statute of limitations.

Basis of the Court’s Decision: The parents set forth in relevant part that from the beginning of the 2013-14 school year through November 21, 2013, the student did not receive the group counseling that was a part of his IEP. While it is undisputed that the parents did not exhaust their administrative remedies relative to this claim, the parties dispute whether the claim is permissibly unexhausted by application of the futility exception to the exhaustion doctrine.

Regarding the statute of limitations to an unexhausted claim, the Court pointed out that “the IDEA itself does not set forth a limitations period governing unexhausted claims brought directly in federal court and references Piazza v. Fla. Union Free School Dist., 777 F.Supp.2d 669, 688 (S.D.N.Y. 2011), for the proposition that “[w]here a federal statute does not specify the limitations period for the cause of action it creates, a court generally applies the statute of 653

limitations from the most analogous state statute”. The Court then cites language in Piazza that “Courts in the Second Circuit considering IDEA claims that are permissibly unexhausted have followed this rule by applying a three-year statute of limitations borrowed from N.Y. C.P.L.R. Section 214(2)”.

The Court pointed out that the Complaint in this case was filed on December 15, 2016 and “as such, the relevant limitations period stretches back three years to December 15, 2013” This being the case, any claim based on events prior to December 15, 2013 are barred as untimely.

Consistent with this, since the IDEA claim here took place from the beginning of the 2013-14 school year through November 21, 2013, that claim is untimely.

L.B. v. New York City Dep’t of Educ., 21-CV-1033 (VEC), 2022 WL 704712 (S.D.N.Y. Mar. 8) Dispute: Whether the parent’s claim for the 2017-18 school year is barred by the statute of limitations.

Conclusion: The Court determined that the parent’s claim for the 2017-18 school year is barred by the statute of limitations.

Basis of the Court’s Decision: “The IDEA empowers parents and guardians to file due process complaints before an IHO with respect to any matter relating to the identification, evaluation, or educational placement of their child, or the provision of a free appropriate public education to such child. 20 U.S.C. 1415(b)(6)(A)” “The statute requires a parent or agency to request an impartial due process hearing within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. 20 U.S.C. 1415(f)(C)” “Accordingly, to determine when [the parent’s] cause of action accrued, the Court must determine (1) the action that forms the basis of [the parent’s] complaint, and (2) when [the parent] knew or should have known about that action”.

In this case, the parent filed an initial due process complaint notice on June 28, 2017. The complaint, which was subsequently withdrawn, was followed by a second complaint and then the operative complaint here, on September 3, 2019. The basis of the “pertinent portion of [the parent’s] due process complaint is the alleged denial of FAPE for the 2017-2018 school year”.

With respect to “[w]hen the parent should have known that [the student] was denied a FAPE for the 2017-2018 school year,” citing to cases, the Court specified that “an IDEA claim for tuition reimbursement accrues when the parents of a child who is entitled to an IEP unilaterally removes the student from a school, place him or her in a new program, and make a payment to the new school”.

In this case, the student’s father signed an enrollment contract and made a $ 5,000 deposit with the private school on March 17, 2017, and thus “triggered the statute of limitations” on that date.

As a consequence, the Court held that “the statute of limitations expired on March 17, 2019, six months before [the parent] filed the operative due process complaint on September 3, 2019”.

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As a consequence, the Court held that the parent’s claim relative to the 2017-2018 school year was time barred.

The Court also evaluated the timeliness of the parent’s due process complaint notice in the absence of the parent’s signing the school’s enrollment contract and the paying of a $ 5,000 deposit to the private school. With respect to this, the Court said that the parent set forth her belief that the district had failed to provide the student with a FAPE for the 2017-2018 school year when she filed her first due process complaint notice on June 28, 2017 to that effect. That being the case, the Court said that the cause of action for reimbursement for the 2017-2018 school year would still be time barred because the due process complaint notice was filed on September 3, 2019, which was still more than two years from the June 28, 2017 date of the filing of the previous due process complaint notice.

N.J. and G.J, v NYC Dept. of Educ, et al, No. 18-CV-6173 (JMF), 2021 WL 965323 (S.D.N.Y. Mar. 15, 2021) Dispute: Whether the student’s claims fell outside of the statute of limitations.

Conclusion: The Court upheld the SRO that the student’s claims fell outside of the statute of limitations.

Basis of the Court’s Decision: The parent filed a due process complaint notice (DPCN) on August 19, 2015. The DPCN raised claims relating to the 2004-05 through 2011-12 school years. Among other things, the DPCN asserted that the student’s disabilities were not timely identified and that the student was misdiagnosed and not properly evaluated. It also asserted that the student had not been “offer[ed] appropriate placements, develop[ed] valid IEPs, employ[ed] appropriate procedures in developing the IEPs, afford[ed] [the student] his IDEA procedural rights and employ[ed] proper procedures to assess and promote [the student]”. An IHO ultimately found that the student’s claims for the 2004-05 through 2007-08 school years fell outside of statute of limitations. The IHO concluded that all claims after February 2008, which was the date of an evaluation of the student, could proceed but that those which predated the February 2008 evaluation were time barred. Both the student and the district appealed the IHO’s decision to an SRO. The SRO found that all claims between the 2004-05 and 2011-12 school years, inclusive, were time-barred. The SRO rejected the parent’s argument that the claims did not accrue until the parent received the results of a 2015 evaluation which diagnosed the student with “learning disorders, a language disorder, and developmental coordination disorder”; diagnoses which had not been previously made.

According to the Court “a parent must request an impartial due process hearing within 2 years of the date the parent knew or should have known about the alleged action that forms the basis of the complaint”. In light of the parent’s claims, the Court held that to be timely the claims relating to the 2004-05 through 2011-12 school years had to have accrued on or after August 19, 2013. The court pointed to a number of oral and written communications to the district and concluded that these showed that the claims accrued before that date. With respect to this, the 655

court found that “there [was] a robust record of [the student’s] dissatisfaction with the ways in which the student’s disabilities were being characterized and accommodated going back as far as 2004”.

Based on the parent’s argument the Court considered whether Draper v. Atlanta Independent School System, 518 F.3d 1275 (11th Cir. 2008) provided otherwise authority. The parent argued “that an IDEA claim accrues in every instance only when the parent learns about the specific underlying diagnosis”. “(A)s a matter of law”, the Court held to the contrary and concluded that “the key question” in Draper was “not whether the parent is aware of the particular diagnosis but whether the parent is aware (or should be aware) that the child has a disability and that the disability is not being adequately accommodated in the classroom”. In this case, the Court wrote that there was “no reasonable dispute that [the parent] knew that there may have been problems – that is, that [the student] was disabled and that the [district] was not adequately accommodating [the student]”. Further, and “as a matter of fact”, even if the accrual date was based on when the parent received specific knowledge of the misdiagnosis” the Court held that the parent had knowledge as early as April 2008 of “the grievances that formed the basis of her 2015 DPCN and that therefore that was untimely.

Y.A. v. New York City Dep’t. of Educ., No. 15-cv-05790 (CM), 2016 WL 5811843, at *2, *4, *5, *8 -*10 (S.D.N.Y. Sept. 21, 2016).

Dispute: Whether the parent’s challenge to the 2010-2011 IEP fell within IDEA’s two-year statute of limitations.

Conclusion: The Court concluded that the IDEAs two-year statute of limitations was tolled and that the parent had a right to challenge the 2010-2011 IEP. Basis of the Court’s Decision: A parent must request a due process hearing within two years of the date the parent “knew or should have known about the alleged action that forms the basis of the complaint” (see 20 U.S.C. 1415[f][3][C]; see also 34 CFR 300.511[e]). However, this timeline does not apply if the parent was prevented from requesting the hearing either due to specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint or due to the local educational agency’s withholding of information from the parent that was required to be provided (See 20 U.S.C. 1415[f][3][D]; see also 34 CFR 300.511[f]) The parent’s due process complaint notice was filed on March 18, 2013. The notice challenged the adequacy of the IEPs for the 2010-2011, 2011-2012, and 2012-2013 school years. The IEP for the 2010-2011 school year “was originally promulgated on March 17, 2010 and was modified on September 27, 2010. Using either date, the parent’s challenge to the 2010-11 IEP was filed more than two years after the IEP was issued”. On this basis the IHO found that the parent’s claim for the 2010-2011 school year was not timely. Upon appeal, the SRO agreed with this conclusion.

The Court determined that the two-year statute of limitations should be tolled because it found that the parent was prevented from requesting a hearing because the district withheld 656

information from the parent that was required to be provided. More specifically, the Court held the district “wrongly withheld two categories of information from the parent”. The Court pointed out that the parent – whose native language was Russian – “never received a Procedural Safeguards Notice in either English or Russian, and the [parent] was denied reasonable access to the student’s school records”. The Court held that each wrongful withholding was sufficient to toll the statute of limitations relating to the 2010-2011 IEP. With respect to the district’s failure to provide the parent with a Procedural Safeguards Notice, the Court set forth that “IDEA unquestionably requires a school district to provide a [Procedural Safeguards Notice] 135 once per year” (20 U.S.C. 1415[d][1][A]; see also 34 CFR 300.504[a]) and that the statute “further requires that the Notice be provided in the parent’s native language unless it is clearly not feasible to do so” (see 20 U.S.C. 1415[d][2]; see also 34 CFR 504[a], [d]; 300.503[c][1][ii]). The Court pointed out “that [t]he Notice is intended, in part, to provide a parent with information about presenting and resolving complaints, including the time period in which to make a complaint” [20 U.S.C. 1415[d][2][E]; see also 34 CFR 300.504[c][5][i], [ii]).

The Court found that the district “neglected to provide the [parent] with a copy of the [Procedural Safeguards Notice] 136, the very document that apprises a parent of her child’s educational rights regarding the special education process” and that this failure violated Section 1415[d][1][A]. The Court also found that the district “neglected to translate any Procedural Safeguards Notice into Russian, the [parent’s] native language in violation of Section 1415[d][2]”. The Court pointed out that “the [district] does not appear to dispute that the [parent] did not receive a Procedural Safeguards Notice in any language, … and it does not argue that translation was clearly infeasible -- a difficult argument [the Court said] for the [district] to make, since it enrolls thousands of students from Russian-speaking homes”).

The Court found “that the preponderance of the evidence showed that the [district] failed to provide the [parent] with a Notice in any language, let alone the [parent’s] native language”. It concluded that the district “had an affirmative duty to transmit to the [parent] a complete explanation of IDEA’s procedural safeguards, written in Russian”. The Court held that “by failing utterly to fulfill its statutory duty, the [district] withheld information from the [parent] within the meaning of Section 1415[f][3][D]”.

With respect to the parent’s claim that the district failed to provide the parent with access to the student’s records, the Court pointed out that the parent had the right of “reasonable access” to student records (see 20 U.S.C. 1415[b][1]; Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 787 [2d Cir. 2002]). Regarding the parent’s access to records, the Court pointed out that parent’s counsel “complained at the outset of the impartial hearing that [parent’s] counsel was provided with no information about [the student’s] education from the district.” In response, the IHO told counsel that “the information would be elicited through cross-examination”. But when parent’s 135 136

The Court styled this as a “Notice of Procedural Rights”.t The Court styled this as a “Notice of Procedural Rights”.

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counsel attempted to “ferret out” such information during cross-examination the IHO accused counsel of engaging in a “fishing expedition” and “attempting to conduct trial by sabotage”. The Court added that “[a]s the hearing wore on, it became apparent that the [parent] indeed lacked access to or notice of certain documents relating to [the student’s] education.” The Court pointed out that “[t]he IHO asked [parent’s] counsel to create a list of desired documents and asked that the [district’s] counsel determine whether such documents’ actually exist”. But when the parent’s counsel presented the hearing officer with a subpoena to obtain records beyond what she had listed the hearing officer refused to sign it. The Court pointed out that the parent was not requesting access to “every last cover letter, transmittal sheet, or scrap of paper that happens to contained in the files” (see Taylor, 313 F.3d at 787). The Court further pointed out that the documents sought by the parent’s counsel included information about “testing and evaluation for the 2010-2011 IEP, [the student’s] progress reports – were eminently reasonable to request in this context” and concluded that the parent “had a statutory right under IDEA to access to those documents. The [district’s] failure to turn over these documents – and the IHO’s refusal to ensure their availability -- contravenes the letter and spirit of IDEA’s procedural guarantee of a parent’s right of access”.

G.B., et al. v. Orange South Supervisory District, 19-3502--cv ----,Fed.Appx. --(2020), 2020 WL 7227190 (2d Cir. Dec. 8, 2020) Dispute: whether the IDEA statute of limitations should have been tolled.

Conclusion: The Second Circuit determined that the District Court did not err when it concluded that the plaintiffs’ claims were not tolled so as to extend the statute of limitations.

Basis of the Court’s Decision: The parties did not dispute that plaintiffs’ claims regarding the failure to timely evaluate the student is two years and that their claim relating to tuition reimbursement is 90 days. The plaintiffs argue, however, that these statutes of limitations should have been tolled on the basis that they were not provided with the mandatory IDEA notices and that the student’s “preplacement evaluation” was ongoing. The Circuit Court held that the plaintiffs waived their claims regarding tolling as they failed to raise any tolling arguments in the administrative proceedings below and that, as a consequence, there was no administrative record upon which the tolling claims could be evaluated. Further, the Court held that IDEA137 and Vermont state law provided that while certain acts would toll the relevant statute of limitations, a preplacement evaluation was not explicitly set forth as one of these acts and that the plaintiffs had cited to no authority suggesting otherwise.

MISCELLANEOUS D.S. v. Trumbull 2020 WL 5552035 (9/17/2020) Dispute: Parents expressed their disagreement with the October 2014 reevaluation in May of 2017, which therefore made that disagreement timely. The District Court found that the parents’

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Note that the cited IDEA statutory reference may be an error.

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challenge of the 2014 evaluation in May of 2017 was” untimely under the IDEA’s established dispute resolution procedures” which was two years.

Conclusion: In a question of first impression, the Court of Appeals disagreed with the district court and concluded that the parents’ claim relative to the October 2014 reevaluation was timely made as it was filed within three years of the date of the October 2014 reevaluation.

Basis of the Court of Appeals’ Decision: The court pointed out that generally, under the IDEA, a parent did not have “to file a due process complaint to obtain an IEE at public expense” and further, that “[t]he IDEA [did] not provide a statute of limitations for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. The court further held that “a parent’s right to an IEE at public expense ripens each time a new evaluation is conducted” and that therefore “the time within which a parent must express disagreement with an evaluation depends on how frequently the child is evaluated.” And since a reevaluation must take place at least once every three years, the parent must express their disagreement within that three-year period. And “should a parent and school agree that the child be evaluated on a more frequent basis, [citations omitted] the parent must disagree with any given evaluation before the child’s next regularly scheduled evaluation occurs”. The Court viewed this separation of “the IEE process from the formal dispute resolution process [as serving] to reinforce the focus on collaboration and communication among an IEP Team” by providing “an additional opportunity for discussion and cooperation” before moving to more formal procedures.

TUITION REIMBURSEMENT – UNILATERAL PLACEMENTS APPROPRIATENESS OF PLACEMENT B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) Issue: Tuition reimbursement – unilateral placement – appropriateness of placement Dispute: Was the student’s private placement appropriate.

Conclusion: The Court concluded that the student’s private placement was appropriate.

Key Take Away: A student’s 1:1 private placement is appropriate if the parent can show that such a placement “is reasonably calculated to enable to child to receive educational benefits.

Reasoning: The student has a significant history of complex psychiatric problems. He receives special education services as a student with an emotional disturbance.

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The student entered Fusion Academy, a private, out-of-district, school, in January 2021. The CSE met in June 2021, to develop the student’s IEP for the 2021-2022 school year. The CSE recommended that, in addition to his classes, the student attend the district’s Twilight program at Hewlett High School for five hours per week. He would also receive related services including 10 hours a week of consultant teacher services. The Twilight program is a “credit recovery” program. The IEP did not provide for 1:1 instruction.

The next day the parent told the district that she intended to continue the student’s placement at Fusion for the 12-month school year beginning summer 2021 and would seek tuition imbursement.

In July 2021, the parent requested an impartial hearing asserting “procedural and substantive” challenges to the June 2021 IEP. The CSE met again in October 2021. In addition to his classes, the CSE again recommended the Twilight program and did not provide the student with 1:1 instruction. The parent filed an amended due process complaint.

The IHO decided that the district did not provide the student with a FAPE. She also decided that the student’s private placement was appropriate. She concluded that the student’s program at Fusion provided him with the “support that he required” which included “individual and adaptive instruction outside the home, opportunities to socialize, a flexible schedule, and intensive instruction” so that the student could earn high school credits. The IHO also decided that equitable considerations supported the parent and that a grant of tuition reimbursement was appropriate.

The district appealed to the SRO. The SRO decided that the district offered the student a FAPE and did not reach the question of the appropriateness of the student’s private placement or equitable considerations.

The parent challenged the SRO’s decision in the United States District Court for the Eastern District of New York. Both parties asked the District Court to rule in their favor.

The District Court decided that the district did not provide the student with a FAPE. The District Court also decided that the student’s private placement was appropriate. The Court said that “[p]arents seeking reimbursement need only demonstrate that the [private] placement is reasonably calculated to enable the child to receive educational benefits”.

The District Court concluded that there was “ample evidence” that the student made significant “educational progress” at Fusion prior to the June 2021 IEP and that he would continue to do so.

The Court referred to evidence indicating that “before [the student] was placed at Fusion” he “did not earn any high school credits” but that after the student’s placement there he showed “tremendous growth both academically and socially”. The testimony was that Fusion struck “the correct balance” because of its individualized nature and that the student’s current setting at Fusion was “indispensable”. The District Court pointed to testimony that a non 1:1 program 660

would “constrain his educational development”, “set the student back”, and likely cause the student to regress. In fact, the Court said that the evidence was that the student was improving “precisely because of the individualized, 1:1 education and that he had not experienced progress in any other setting”. The District Court also decided that the IHO’s conclusions regarding Fusion were correct.

The Court decided that the student’s program at Fusion “was an appropriate placement” for the student.

Khanimova v. Banks, 23-CV-09531, 2025 WL 722876 (S.D.N.Y. Mar. 6, 2025) Issue: appropriateness of unilateral placement Dispute: Was the student’s unilateral placement appropriate.

Conclusion: The District Court concluded that the student’s unilateral placement was not appropriate.

Key Take Away: A parent must remember that unless the private placement is “appropriate”, even if the district has not provided the student with a FAPE, a Court will not order payment or reimbursement for that private placement.

Reasoning: The student is eligible to receive special education as a student with a traumatic brain injury.

The district’s CSE held meetings in February and June 2022 to develop the student’s IEP for the 2022-2023 school year. The parent disagreed with the IEP‘s recommendations and with the student’s placement at the assigned public school. The parent then notified the district of her intent to unilaterally place the student at a private school and to seek public funding for that placement. The parent filed a due process complaint in July 2022. The complaint said that the district had denied the student a FAPE and sought reimbursement for the student’s placement at the private school. After a hearing, based on the lack of evidence from the district, the Impartial Hearing Officer (IHO) found that the district “had conceded” that it did not offer the student a FAPE. The IHO also decided that the parent did not provide evidence to show that the student’s unilateral placement was appropriate. The IHO concluded that there was “scant evidence” that the student was making progress or that she was receiving the correct amount and type of related services that she was supposed to be receiving.

The plaintiff appealed the IHO‘s decision to a State Review Officer (SRO). The SRO upheld the IHO’s conclusion. He concluded that the student had only received “around or a little above half of the recommended” related services, that there was unlikely sufficient time during the balance of the school year to make up for the lost services, and that the shortage of related services was “of heightened concern” because the student’s plan at the private school spoke to the need for the delivery of the related services to be consistently daily for five days a week. The SRO also

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found that there was “no objective evidence” that the student had made progress at the private school during the 2022-2023 school year.

The parent went to federal District Court in October 2023. It sought to overturn the decision of the SRO. Both sides then asked that the District Court find in their favor without a hearing. The parents argued that the District Court should not give deference to the SRO’s decision, saying that the SRO had “incorrectly applied the law”. Further, the parents said that the SRO should not have looked at the extent to which the student made progress during the 2022-2023 school year.

The parent also said that the SRO had engaged in “improper speculation” when he concluded that the school would not likely be able to make up the lost related services by the end of the 2022-2023 school year. Additionally, the parent argued that she had submitted “compelling evidence” that the student had made “substantial progress” at the private school. The parent claimed also that the District Court should consider the district’s failure to provide a FAPE in the first instance in determining the “reasonableness” of the student’s unilateral placement. Finally, the parent asserted “that a complete denial of funding was harsh medicine”. The district asserted that the SRO’s decision was owed deference and should be upheld.

The District Court concluded that the SRO’s decision should be awarded deference. It concluded that the SRO’s review was “thorough and careful”. It further said that the SRO’s decision was “thoroughly reasoned and based on a careful consideration of and supported by the administrative record”. The District Court pointed to the SRO’s consideration of evidence relating to the student’s needs, that the student was not being provided with significant portions of the related services mandated by the private school’s plan; that there was not enough time left in the school year for the school to make up the lost services; and the fact that the “consistently missed” related services were of “heightened concern” because the private school had highlighted the necessity of the consistency of such sessions. Further, the District Court said that the documents reviewed by the SRO did not show “meaningful progress” on the part of the student and that “overall” the evidence did not show that the student made progress.

The District Court rejected the plaintiff’s specific arguments. The District Court said that the SRO had correctly applied the law. The parent had argued here that only evidence about periods of time after the placement decision was made should be considered. The Court pointed out that this was not the law and that the appropriate test was whether “the placement provides educational instruction specially designed to meet the unique needs of a disabled child supported by such services as are necessary to permit the child to benefit from instruction”. Information relevant to the school year after the placement decision was made, the court indicated, was relevant to this.

The District Court also said that there was no improper speculation regarding whether the private school could make up the missed related services sessions. The District Court pointed out that evidence supported the SRO’s conclusion that the student had not received the required amount and type of related services; that there was not enough time during the balance of the school year to make up for the lost services, and that the failure of the student to receive the 662

recommended services was of a “heightened concern’ as the information from the private school was that the student needed consistent and regular related services. None of these factual conclusions were at all speculative, the Court said, but absolute.

The District Court disagreed that there was “compelling” evidence “that the student had made “substantial progress” at the private school. It said the SRO, as it was appropriate for him to do, looked clearly at the evidence and justifiably found that this was not the case.

The District Court said that the district’s failure to provide the student with a FAPE in the first instance did not play into the “reasonableness” of whether the student’s unilateral placement was appropriate. The District Court made it clear that the parent had the burden of proof to show an appropriate placement even if the IEP was inadequate.

As far as a “complete denial of funding” being “harsh medicine”, the Court spoke to the standard required and said that reimbursement was not available as the student’s unilateral placement was not appropriate.

Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023) Dispute: Whether the parents met their burden in order to receive reimbursement for private services provided to the student.

Conclusion: The SRO concluded that the parents met their burden to receive reimbursement for private OT services but did not do so in order to receive reimbursement for private SEIT/behavior specialist services provided to the student.

Basis of the SRO’s Decision: The student attended a private school for the 2020-21, 2021-22, and 2022-23 school years. “In April 2021 (pre-kindergarten), the parents became aware that the student had been spending much of his school day in the principal’s office due to behavior problems.” At that time, the parents made arrangements and “hired a behavioral specialist to observe the student and provide guidance to his teachers”. During the fall of the 2021-22 school year and through February of that school year, the parents made private payments to provide the student with an OT evaluation, OT services, and a special education itinerant teacher services (SEIT)/behavior specialist. At the end of the 2021-22 school year, the parents worked with the school so that the student would be “paired with a supportive team of teachers for the following school year”.

In early 2022, because of his “continued struggles in the classroom”, the private school suggested that the student be evaluated by the district to determine his eligibility for special education services. The student received a number of evaluations in February and March 2022.

The CSE convened on April 5, 2022 and found the student eligible for special education as a dually enrolled student with an emotional disturbance and created an individualized education services program (IESP) for the student with an implementation date of May 3, 2022. The CSE 663

recommended that the student receive OT, individual counseling, and a full-time 1:1 paraprofessional. The CSE also completed an FBA during that meeting. The parents had the student privately evaluated in October and November 2022, which resulted in an evaluation report in December 2022.

The parents filed a due process complaint notice dated April 3, 2023 alleging that the district failed to provide the student with a FAPE during the 2020-21, 2021-22, and 2022-23 school years.

Among other things, the parents alleged that the district failed in its child find obligations for the 2020-21 school year and a portion of the 2021-22 school year. For relief, the parents requested reimbursement for the OT, SEIT, and tutoring services they had provided, an order to fund a 1:1 behavioral support professional an independent FBA and BIP, reimbursement for the October 2022 OT private evaluation and the December 2022 private neuropsychological evaluation, and to fund appropriate compensatory services.

Among other things, the SRO determined that the district did not meet its child find obligation and thus it failed to provide the student with a FAPE for, among other periods, the 2021-22 school year. Relative to this, the parents asserted that, contrary to the child find provisions of the IDEA, the district did not have appropriate procedures in place to locate, identify, and evaluate all nonpublic school students located in the district. Notwithstanding this, the district failed to come forward and show how it did.

As indicated above, during the 2021-22 school year the parents provided the student with, among other services, private OT and private SEIT/behavior support services. Such services are reimbursable in accordance with the Bulington-Carter test.138 Since the SRO determined that the district did not provide the student with a FAPE for the 2021-22 school year, the questions become under Burlington-Carter, whether the private OT and SEIT services are appropriate for the student and whether there are equitable considerations that would disfavor an award to the parents.

With respect to the appropriateness of the OT services, upon review, the SRO concluded that the private agency “identified the student’s needs and provided appropriate OT services”, which resulted in the student’s progress during the 2021-22 school year.139 Further, the SRO found that no equitable considerations that would disfavor an award of OT services to the parents were reflected in the hearing record. As a result, the SRO reversed the IHO and “award[ed] reimbursement for all out-of-pocket expenses related to OT services for the entire 2021-22 school year”.

138 It is also appropriate for the district to directly pay the provider under circumstances showing proof that the parents are legally obligated to pay but do not have adequate funds to do so.

The SRO reminded readers that “progress alone does not establish that the private services offered were adequate and appropriate education under the IDEA”. See Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).

139

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Regarding the appropriateness of the SEIT/behavior support services, the parents “alleged that they began to pay out of pocket for a SEIT and behavior specialist to push-in to the student’s classroom on a full-time basis for the first two weeks of January 2022 and then for several followups in February 2022”. Upon review, here, the SRO concluded that “there is not enough evidence [in the hearing record] to support a finding that the SEIT services obtained by the parents were appropriate as there is no information concerning what the SEIT provider worked on” or “how the provider functioned in the student’s classroom”. Regarding this, the SRO remarked that “the only information regarding what the student worked on during his SEIT sessions were presented by the parent through affidavit testimony and in the due process complaint notice”. The SRO advised that the record “demonstrated” progress but noted that “[p]rogress alone does not establish that the private services offered were adequate and appropriate education under the IDEA” See Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003). The SRO pointed out that there was “no evidence that the SEIT … identified the student’s needs and then provided services specially designed to address his identified needs” and that additionally, “the hearing record lacks sufficient information about the services the student received”.

With the above in mind, the SRO concluded that the parents met their burden to show that the private OT services were appropriate and reimbursable but did not meet their burden to prove that the SEIT services were appropriate for the student and that the parents should be reimbursed for them.

Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) Dispute: Whether the parent’s unilateral placement was appropriate to address the student’s needs.

Conclusion: The SRO found that the parent’s unilateral private school placement was appropriate to address the student’s needs.

Basis of the SRO’s Decision: The student in this matter “received a diagnosis of bilateral profound sensorineural hear loss as an infant…”. “Around age three the student was fitted for cochlear implants, supported by hearing aids[,]” the later which she had previously used inconsistently. Subsequent to services through early intervention, the student “aged out” of the CPSE program. The student remained in the CPSE program for two additional years at the parent’s expense. The student then attended the “auditory/oral 12:1+1 special class in a special school where for the 2017-18 school year (first grade). “The student attended the same auditory/oral 12:1+1 special class for the 2018-19 school year (second grade) and again for the 2019-20 school year when she repeated second grade”.

An “auditory/oral program” has as its goal “to teach the students to maximize the use of their residual hearing through the utilization of hearing aids or cochlear implants in order to learn spoken language”.

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“A CSE convened on January 15, 2020 to formulate the student’s IEP for the second half of the 2019-20 school year and the first half of the 2020-21 school year. The CSE recommended that the student attend the 12:1+1 special class that employed an auditory/oral 12:1+1 teaching methodology” for multiple periods of week for academic subjects. Regarding related services, the CSE recommended OT and five, 30-minute sessions per week of individual speech-language therapy. Among other program components, the CSE also recommended 12-month services.

The parent filed a due process complaint notice that the CSE “failed to thoroughly evaluate the student and develop an appropriate IEP to meet her needs” and gave notice that she would be attending a private school. As a result of an impartial hearing, an IHO concluded that the district offered the student a FAPE and, more particularly, established “that the recommended 12:1+1 special class using the auditory/oral teaching methodology, along with the related services identified in the January 2020 IEP, were appropriate to address the student’s special education needs”. The IHO denied the parent’s request for direct payment to attend the private school.

The SRO first addressed the adequacy of the district’s placement and determined that the district’s program denied the student a FAPE. The SRO then considered whether the parent’s unilateral placement was appropriate to address the student’s needs.

“A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction 666

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”.

The private school in this case “is an ungraded co-educational school, founded to help students with language-based learning disabilities”. It is not an approved school by the Commissioner.

The school’s population includes students who need assistance because of deafness/hard of hearing. The “curriculum is based on New York State Common Core standards, with accommodations developed for each student’s needs. A multidisciplinary approach is used and modifications are made for each student based on his or her educational, emotional, and functional levels”.

Upon a close and detailed review of the student’s needs and the services provided at the private school, the SRO concluded that it “identified the student’s deafness as well as her academic, sensory-motor, speech-language (including needs related to apraxia), and social needs and provided the student with a specially designed instruction targeted to meet her needs.” The SRX concluded that “[m]oreover, the documentary evidence shows that the student made important gains throughout the 2020-21 school year.

Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Was the parent’s unilateral placement appropriate.

Conclusion: The Court held that the parent’s unilateral placement was appropriate.

Basis of the Court’s Decision: The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage …, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

In this tuition reimbursement case, the IHO found that the district failed to provide a FAPE to the student, that the parent’s unilateral placement was appropriate, and that the equities favored an award of tuition reimbursement to the parent. Regarding the appropriateness of the student’s unilateral placement, the IHO found that the program was an appropriate size, that the related services were appropriate in length, and that the program provided nursing services to the student – all program aspects that the district’s recommendation did not provide and which the IHO found deprived the student of a FAPE. The Court rejected the district’s argument that the private school spent “too little time on academics,” finding that “given the nature of [the student’s] functioning, what is being addressed at [the private school] appears to be targeted to [the student’s] unique learning needs as a low functioning individual with disabilities across many domains”.

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The Court pointed out that the SRO did not address the appropriateness of the unilateral placement as she concluded that the district’s proposed program offered the student a FAPE, which the Court had previously rejected.

Upon review, the Court found that “because the Court is not being pointed to, and has not independently identified, anything in the record showing that the IHO’s determination is unreasonable” it would defer to the IHO’s “well-reasoned” opinion.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Was the student’s unilateral placement appropriate.

Conclusion: The SRO concluded that the student’s unilateral placement was appropriate.

Basis of the SRO’s Decision “A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”.

Regarding the student’s needs, she was a student with a traumatic brain injury (TBI) and had “very complex needs”. Because of the student’s “cerebral palsy diagnosis, bilateral blindness, 668

brain-based conditions, and global delays all of the essential functions for cognition and executive functions were impaired”. As indicated and in addition, the student had other significant needs in the areas of decision-making, problem solving, inferences, understanding/comprehension, expressive language as a result of her conditions. She also had needs for feeding, activities of daily living, social development, physical development, and vision, and management. Regarding related services, among other things, the student had a need for “PT, OT, speech-language therapy, vision services, hearing education services, and music therapy”. The student had “a need for physical activity in her day”, “required a highly specific environment for learning” and “required a lot of repetition, tactile supports, very direct instruction for how to complete tasks, tactile modeling and cueing”. It was also “important to provide the student with a lot of consistency with how people responded to her for purposes of rapport, trust, security, and individual support and attention.” The student required a 1:1 paraprofessional to ensure her “safe participation” during the school day and address the student’s lack of safety awareness and therefore “needed close monitoring” to address her significant needs. “[D]ue to the degree of the student’s physical and cognitive impairment, she required intensive interventions, specifically designed instruction, modifications, and adaptations … ”. She was “not able to participate in a general education classroom due to the severity of her impairments”. Her needs required “a small quiet environment, individual academics at her level, and the need for similar peers”. The student had “many strong capabilities as a student”. “[S]he was able to participate in trips to the community given appropriate supports”.

Regarding the specially-designed instruction, the unilateral placement “was a specialized educational program that focused on serving students who were nonverbal, non-ambulatory for the most part, and who had brain injuries or brain-based disorders”. The school’s population ranged from 5 to 21 years of age and provided an “extended school day”. The student received an extended school year, extensive related services including PT, OT, speech-language therapy, music therapy, vision education services, individual hearing education services, and assistive technology services”, For the most part, the student’s related services were both push-in and pull-out and provided in 60-minute blocs because of her needs. The school also provided the student with “feeding training, AAC training as needed, safe ambulation, and training regarding trust-based supports for social learning.

The student was placed in an 8:1+1 special class to address her “need for advanced social interaction, appropriate models for language development, social/behavioral skills, and ACC use”. It “was also recommended to support the student’s significant management needs”.

Further, the private school’s 8:1+1 special classroom reflected the student’s previous progress in that setting. The student “received daily, individualized support from the teacher using a direct instruction model” and “used correction procedures and errorless learning techniques”. The teacher “worked with the student every day for at least 30 minutes” and exclusive of time spent receiving related services. The student had a paraprofessional assigned to her to help address her needs”.

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Regarding evidence of progress, there were no specific indications of this for the academic year in question. However, the SRO pointed out that “[a] finding of progress is not required for a determination that a student’s unilateral placement is adequate” and that “[t]he evidence regarding progress does not weigh heavily as a factor in this case”.

The SRO pointed out that the district did not make any “particular arguments” regarding the appropriateness of the unilateral placement” at the impartial hearing. Moreover, beyond a “general denial” in papers before the SRO, nothing in particular was raised before the SRO regarding the appropriateness of the student’s placement.

The SRO concluded that “considering the totality of the circumstances, the evidence in the hearing record supports a finding that the student’s placement [at the private school] reasonably served the student’s individual needs, providing educational instruction specially designed to meet the unique needs of the student”.

Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) Dispute: Was the student’s unilateral placement at Quad Prep an appropriate placement.

Conclusion: The SRO concluded that the student’s unilateral placement was appropriate.

Basis of the SRO’s Decision: “A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement 670

consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

In this case, evaluations of this second-grade student yielded diagnoses of oppositional defiant disorder (ODD), anxiety disorder, and attention deficit hyperactivity disorder (ADHD). The student has significant behavioral, attentional, and social/emotional needs. In school, among other things, the student demonstrated challenging behaviors; disruptive, noncompliant, and aggressive behavior; significant anxiety; and the need for behavioral intervention. “[T]he combination of the student’s difficulties made it highly challenging for [the student] to get through the school day”. “[B]ehavioral scales completed by the student’s parents and teachers resulted in elevated scores for hyperactivity, externalizing behavior, defiance, and aggression”.

Evaluators recommended individual and group counseling as well as OT for his handwriting and a behavioral intervention plan. The student had a full-scale IQ of 128 (97th percentile). The student had relative weaknesses in processing speed and working memory, and both fell in the high average range. On a measure of academic achievement, the student scored between the 55 and 95th percentiles on tasks involving word reading, reading comprehension, and oral reading fluency and in the average range in written expression, mathematics, and math fluency.

At the time of the relevant CSE meeting, the student was attending second grade at Quad Prep.

“Quad Prep is a New York State Association of Independent Schools’ (NYSAIS) accredited private school for children who are twice exceptional students such as gifted students with learning disabilities”. The director of the school testified that “Quad Prep offered students steady, expert support in areas such as executive functioning and social cognition so that they can develop the skills and tools they need to thrive in school and beyond” Additionally, she reported that the school “purposefully and meaningfully integrates academic, social, and emotional learning in its classrooms, curriculum, and collaborative cross-disciplinary teaching teams and this allows the students to deepen their understanding and perspective in their academic work”. “The director testified that Quad Prep serves students with attention deficit disorder, executive function disorder, sensory processing disorder, dyslexia, autism spectrum disorder social communication disorder, some mental health challenges, emotional regulation challenges, learning disabilities, dyscalculia and other conditions”. The director explained that “a Quad Prep classroom always includes a team of academic teachers and a clinically supervised psychosocial teacher whose job is to act as a liaison with the clinicians working with each class”. She further explained that Quad Prep staff included, among other occupations, occupational therapists and counselors.

“The director reported that, for the 2021-22 school year, the student attended a class comprised of 10 students, four teachers, an intern, and two clinicians…” The student “learned either individually or in a group of two to five students”. According to the director, “the student had 671

similar academic and social/emotional profiles as the other students in the class” “The director noted that the student started out smoothly but that “the more comfortable the student became in the setting” the more challenging was his behavior. Because of his behaviors (“impulsive”, “inattentive”, “verbally aggressive with other students”, “challenged authority”, “provoked classmates to join in mean spirited comments” and “defied teacher directives”) “by early October 2021”, the student required and received “significant one to one attention”. However, the director stated the opinion ‘that as he began to grow accustomed to the structure and the various supports that were put in place for him” at Quad Prep, ‘the student made considerably more progress in the second half of the school year”. The director “testified that within the academic realm, Quad Prep provided the student with …” numerous supports, services, and strategies.

“The hearing record also indicates that Quad Prep provided OT and counseling services to the student”.

On this basis, the SRO found that the student’s unilateral placement was appropriate.

Falmouth Sch. Dep’t v. Mr. and Mrs. Doe, 44 F.4th 23, (1st Cir. 2022) Dispute: Whether the parents’ private placement was appropriate to meet the student’s needs.

Conclusion: The Court upheld the Hearing Officer and District Court that the parents’ unilateral placement was appropriate to meet the student’s needs.

Basis of the Circuit Court’s Decision: In this case, after determining that the district failed to provide the student a FAPE on the basis that it did not provide the student with an adequate reading methodology, the Court moved to determine whether the parents’ unilateral placement was appropriate.

The district argues that the District Court erred in upholding the Hearing Officer’s order that the district must reimburse the parents for the student’s tuition at the private school. In particular, the district argued that the private school was not a proper placement because it lacked any mainstreaming. The Circuit Court pointed to Supreme Court authority that a parent’s unilateral placement may be proper under the Act even if a placement there would not meet all of the requirements that school districts face in providing a FAPE. See Florence Cnty. Sch. Dist. v. Carter, 510 U.S. 7, 13-14 (1993). And this being the case, the Circuit Court said that “an appropriate private placement is not disqualified because it is a more restrictive environment than that of the public placement. Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 84 (3rd Cir. 1999).

Finally, the Circuit Court ruled that the district’s assertions that the record shows that the private school was not a proper placement because many of the private school’s instructors were poorly trained and had far less educational experience than the student’s district’s instructors did not stand scrutiny. The Circuit Court said that under its standard of District Court review the record purportedly shows that the teachers at the private school were adequately trained and supervised by that school’s leadership. And that further, such leadership was experienced in delivering Seeing Stars, the reading methodology that was appropriate for the student.

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“Moreover, the Hearing Officer supportably found that the student made progress at [the private school] …” [;] progress the District Court agreed was greater than the student had made in the two prior years at the district’s school.

T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) Dispute: Whether the parents’ unilateral placement was appropriate for the student.

Conclusion: The Circuit Court agreed with the District Court and disagreed with the IHO and the SRO and found that the parents’ unilateral placement was appropriate for the student.

Basis of the Circuit Court’s Decision: The Circuit Court initially set forth the parameters of an appropriate unilateral placement.

Regarding that, the Court said that “[a] private placement is appropriate if it is reasonably calculated to enable the child to receive educational benefits such that the placement is likely to produce progress, not regression. In determining whether a placement reasonably serves the educational needs of a child with a disability and is likely to provide progress, we consider the totality of the evidence, including grades, test scores, regular advancement, or other objective evidence. The test for a private placement is that it is appropriate and not that it is perfect.

Parents bear a lower burden to demonstrate the appropriateness of a private placement than school districts do to demonstrate the provision of a FAPE because parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a FAPE”.

In this case, the Circuit Court concluded that the private school was an appropriate placement for the student. The student “was classified as learning disabled” and the private school was a “State-approved school devoted to educating students with learning disabilities”. Further, a private psychologist advised that the student “needed a more supportive academic environment in a small, special education class and school for children with solid cognitive potential who need a supportive and specialized approach for learning”. The school “proved to be a successful match” for the student” and the Circuit Court cited to the IHO and SRO’s finding that the student “made progress across the board there both academically and behaviorally”.

Both the IHO and the SRO concluded that the placement was not appropriate because “it offered [the student] inadequate physical therapy, occupational therapy, speech therapy, and counseling services”. This was “error” the Court said as “[p]arents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement is reasonably calculated to enable the child to receive educational benefits”. In this case, the Circuit Court said “[a]s verified by the totality of the record evidence and the findings of the IHO and SRO themselves, [the student’s] progress at [the private school] satisfies [the parents’] burden to prove that [the private school] was reasonably calculated to enable [the student] to receive educational benefits”.

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M.P. v. New York City Dept of Educ., 21 Civ.7439 (LGS), 2022 WL 4109774 (S.D.N.Y. Sept. 8, 2022) Dispute: Whether the parent’s unilateral placement was appropriate.

Conclusion: The Court reversed the SRO and concluded that the parent’s unilateral placement was appropriate to the extent that the district should pay 3/8 of the student’s tuition costs.

Basis of the Court’s Decision: During the 2020-21 school year, the student was classified as a student with Autism.

The student received remote instruction due to COVID-19 from March 23, 2020 to September 4, 2021 when the Governor authorized schools to reopen for in-person instruction. During the 2020-21 school year the student continued to receive remote instruction upon the election of the parents, who were concerned about the safety of the student and with the consent and cooperation of the unilateral placement.

During the period March 16, 2020, through the end of August 2020, the student received two hours a day of remote instruction including speech-language, occupational therapy, and ABA instead of an eight-hour school day. During the balance of the 2020-21 school year, the student received three hours of remote instruction instead of eight hours a day of in-person instruction.

She was given videos and assignments to do at home for the balance of the school day.

The IHO found that the parents’ unilateral placement “had provided [the student] with educational instruction specially designed to meet her unique needs and supported by such services as were, and are, necessary to permit the student to benefit from instruction”. The IHO, however, approved a reduced amount of tuition reimbursement based on a pro rata amount of remote instruction. More specifically the IHO found that during the period of time that the student received two hours of at-home remote services, the student would receive 2/8 of the school’s cost of tuition. During the time that the student received three hours of at home, remote instruction the IHO found that the student should receive 3/8 of the tuition costs of the private placement.

The SRO reversed the IHO’s determinations. The SRO denied any tuition award on the basis that the parents “had failed to meet their burden of showing that [the private school] had addressed the student’s special education needs”. The SRO questioned the fact that the parents’ elected to continue remote instruction notwithstanding that the Governor had reopened schools as of September 4, 2020, and concluded that “[the parents] were required to demonstrate at the impartial hearing that the instruction and related services that were delivered remotely to the student constituted specialized instruction that addressed the student’s unique needs”. With respect to this, the SRO pointed to the fact that private school staff testified that the student “needed full adult support … throughout the day, direct instruction … and continuous full day 1:1 instruction …”. Needing this, the SRO found that “it was difficult to envision, without further evidence, how the remote program was appropriate for the student”. As indicated, while “[the 674

private school] provided the student with assignments and videos for the remainder of the school day, the SRO “found the record devoid of any testimonial or documentary evidence concerning the content of the assignments or videos, how the student accessed these materials or whether the student was assessed with respect to the completion of any assignment or engagement with videos”. “The SRO acknowledged that [the student] met 33 short-term objectives on [the school’s] IEP, that some skills continued to be a challenge” but that the student “was nevertheless making real progress” including those in the ADL domain. The SRO also found that the hearing record did not contain information regarding how the student’s remote instruction was modified from her direct, in person-instruction.

Upon review, the Court reversed the SRO. It found that for a number of reasons, the parents were “entitled to partial reimbursement” of tuition. Importantly, the Court’s decision makes reference to a “June 2021 Progress Report” 140. The Court states that because the SRO did not have access to this report showing the student’s substantial progress during the period, that the SRO’s decision should be given “less deference” “and the SRO’s decision was “inadequately reasoned”.

Citing to the proposition that progress is persuasive but not dispositive, the Court again referenced the June 2021 Progress Report, which the SRO did not have and which was not considered, and said that this Progress Report showed “remarkable progress” including progress in some areas that was greater than the year before and also in areas that the SRO had “highlighted as challenging for [the student]”. The Court summarized the impact of this progress – which was not before the SRO -- as supporting “a finding that [the school’s] remote program was an appropriate placement”.

The Court found that “[i]n part because the SRO did not consider the June 2021 Progress Report, the SRO’s decision was not supported by a preponderance of the evidence and did not fully address the totality of circumstances in determining whether [the private school’s] remote program was reasonably calculated to enable [the student] to receive educational benefits”. With respect to the SRO’s claim that it was “difficult to envision, without further evidence, how the remote program was appropriate for the student, the Court said that the “appropriateness of [the student’s] remote learning should not be based on what [the student] would have received in [the school’s] in-person program for eight hours a day as the test is whether placement is appropriate not that it is perfect”. The Court found that the remote program “addressed [the student’s] needs, albeit to a limited extent”. The Court said that the “tailored one-to one instruction, with [the parent’s] supervision during the three hours of remote sessions … entitled [the parents] to partial reimbursement in the form of 3/8 of the daily tuition rate as the IHO had found.

Although the June 2021, Progress Report is critically important to the outcome of the Court’s decision, inexplicably the decision provides no explanation as to how the Progress Report came before the Court. Re this, it is possible that the parents requested that the Court hear additional evidence. See 1415(i)(2)(C)(ii); 34 CFR 300.516(c)(2).

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On a different note, and also relating to whether the SRO “adequately consider[ed] the totality of the circumstances in determining whether [the private school] reasonably served [the student’s] individualized needs”, the Court concluded that the SRO did not. More specifically, the Court held that the SRO did not “consider the impact of the COVID-19 pandemic for the 202021 school year “other than to note that [the student] had continued remote learning at the parents’ election”. This put “undue weight”, the Court said, “on the fact that the remote learning was voluntary and that [the student] would have received more live instruction if she had attended school in person. With respect to the parents’ decision, the Court concluded that they had good COVID-19 related reasons to elect to continue remote learning. With further respect to whether the SRO considered the totality of the circumstances, the Court said that this included factors “of which the SRO was unaware or gave no weight -- the June 21, 2021 Progress Report and the serious risks posed by the global pandemic to [the student] and her family”.

Finally, the Court concluded that the student’s “three hours of remote instruction were reasonably calculated to enable [the student] to receive educational benefits”. The Court disagreed with the SRO’s conclusion “that the hearing record lacked information concerning how the one-to-one instruction and related services were modified for remote, as opposed to inperson delivery”. First, the Court held that there was evidence in the record about how the program was modified. Second, the student “was able to engage in certain physical and interactive activities through the remote learning process and even make progress in those activities”. Third, the fact that certain activities may not have been feasible during remote learning “does not weigh heavily towards finding that the remote learning [the student] was engaged in during the live sessions was not appropriate. The Court cited to the fact that group activities at schools functioning in an in person environment also had physical activities limited during the COVID-19 pandemic and “that the parent need not show that a private placement provides every special service necessary to maximize the child’s potential”.

S.B. v. New York City Dep’t of Educ., 221 Civ.9139 (LGS), 2022 WL 3997016 (S.D.N.Y. Sept. 1, 2022) Dispute: Whether the student’s unilateral placement was appropriate to meet the student’s needs.

Conclusion: The Court concluded that the student’s unilateral placement was not appropriate to meet the student’s needs.

Basis of the Court’s Decision: In this case, the parent sought tuition reimbursement for his attendance at the School of Urban and Wilderness Survival. The program is a residential “wilderness therapy intervention program that serves adolescents struggling with depression, anxiety, and other emotional regulation.”

The student “participated in milieu therapy at all times” and also received once a week individual therapy

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At the impartial hearing, the district defaulted on its obligation to prove that it provided the student with a FAPE. Citing to a single page in the record, the IHO determined that the student’s unilateral placement at the program was appropriate. The district appealed to the SRO, who reversed the IHO’s determination, concluding that the evidence in the hearing record was insufficient to establish that the unilateral placement was appropriate.

The Court upheld the SRO’s determination. It found that the SRO’s decision “[was] entitled to deference because it involve[d] a matter requiring educational expertise and [was] wellreasoned.” The Court further found that “[t]he SRO carefully and thoroughly weighed the evidence, cited relevant case law and legal standards, and provided a detailed record-based decision”.

The Court said that “progress” was “relevant” “but by no means dispositive” to the determination of an appropriate program. With respect to progress, in this case “the SRO explained that although there was no process used for measurement of progress with respect to the [program’s] report card, the [program’s] discharge summary noted a number of areas of progress relative to [the student’s] mental health diagnoses”.

“In addition to progress”, the Court pointed to the SRO’s consideration of “therapeutic aspects of the program, and that the SRO found that the evidence of milieu therapy was general, and while there is evidence of therapy provided by a social worker two times a week the duration of the sessions is unknown and there are no notes or other objective documentation that might have been offered to support how the student benefitted from that related service.” Further, the Court pointed to the SRO’s conclusion that “the educational opportunities … were insufficiently clear from the record” “especially in light of”, “the clinical director’s statement that [the program] [did] not attempt to view the student through an academic lens”, “the fact that the program focused almost entirely on treating the student from a mental health perspective” and “there [was] no evidence of cooperation with a local school district of location or other educational institution … to ascertain educational objectives for the student”.

With respect to the “residential aspect” of the program, the Court found a similarity in Circuit Court case law which was identifying “the relationship between non-educational needs and the educational opportunities such services were designed to support.” “Consistent with this, the court pointed to Second Circuit case law which focused on “whether the child requires the program to receive educational benefit”. (Emphasis in original). The Court pointed out that in this case, the “SRO found that the educational aspect was deficient.

Application of a Student with a Disability, Appeal No. 22-065 (July 25, 2022) Dispute: Whether the private school attended by the student was an appropriate unilateral placement for the student.

Conclusion: The SRO reversed the IHO’s conclusion that the student’s unilateral placement was appropriate for the student.

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Basis of the SRO’s Decision: “A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”. “Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”.

As a result of litigation, the referenced matter was remanded to the OSR by the United States District Court for the Eastern District of New York for further proceedings and including whether the parent met the burden of showing that the unilateral placement was appropriate.

In this case, “the student has received diagnoses of attention deficit hyperactivity disorder (ADHD)-inattentive type, generalized anxiety disorder, and social anxiety disorder”. “Due to residual signs of dyslexia, the student has also been considered for a diagnosis of specific learning disability with impairment in reading” “In addition, the student’s slow progress in math has resulted in a diagnosis of specific learning disability with impairment in mathematics”.

Upon review, the SRO concluded that “the hearing record establishes that Lowell was an appropriate unilateral placement…because it provided specially designed instruction to meet the student’s needs and the student made progress”.

With respect to the question of specially designed instruction, upon review of the record, the SRO noted that Lowell was “a small, special education school” and “[was] approved by the New York State Commissioner of Education to accept students with a number of disability 678

classifications including learning disability, speech or language impairment, or other health impairment”. The SRO informed that all of the school’s classes “employ a 12:1+1 class ratio.” The SRO advised that “[t]he student’s management needs, as well as the resources and strategies used to address them were noted throughout the Lowell progress reports…”. Testimony by the student’s teacher, the counselor, and the school’s admissions director reported that the student’s academic, learning, social and emotional needs, including her anxiety, were identified and addressed by Lowell’s individualized school program which provided “educational instruction specially designed to meet the unique needs of the student, supported by such services as were necessary to permit the student to benefit from instruction”.

With respect to progress, according to the SRO, “the student made some progress toward meeting her annual goals related to counseling…”. Relative, to her academic goals, contrary to the IHO decision that the student did not make progress and was struggling in reading, the SRO pointed out that the student’s report cards indicated “passing grades for all subjects” and importantly, during the relevant school year, the student made “some progress in the area of reading”. The student also “made gains in her adjustment since the start of the school year”.

Consistent with this, the admissions director testified that “the student made slow and steady incremental gains across both academic and social/emotional areas.

With all of the above in mind, the SRO concluded that “Lowell constituted an appropriate unilateral placement for the student [during the relevant school year]”.

Application of a Student with a Disability, Appeal No. 21-024, pp.7-16 (Mar. 17, 2021) Dispute: Parents assert the unilateral placement is appropriate absent the provision of PT as a related service. The district disagrees.

Conclusion: The SRO overruled the IHO and concluded that the student’s unilateral placement was appropriate notwithstanding the absence of PT as a related service.

Basis of the SRO’s Decision: The student attended the Gillen Brewer School. The parents requested tuition reimbursement for the period March 27 through June 19, 2020, during which time the student participated in an “At home Learning Program” provided remotely because of the COVID-19 pandemic.

The SRO found that the record showed that the student’s overall performance on measures of cognitive ability fell within the low average range and that she performed significantly below age and grade expectations in reading, mathematics, spelling, and written expression. Among other things the student also had needs in the areas of social/emotional skills, gross motor skills, skills related to the provision of occupational therapy services, and speech-language. The IHO concluded that Gillen Brewer’s program was inappropriate “solely because it did not provide PT services”. The SRO noted that the record showed that the occupational therapists addressed both fine and gross motor within occupational therapy. The occupational therapists worked on and developed goals for both fine and gross motor control and development. The record also 679

showed that the student’s OT goals included addressing the student’s upper body strength, which was described as being “a crossover between PT and OT”. Regarding the student’s gross motor skills, the SRO concluded that a review of the relevant goals in the 2019 IEP did not reflect that the student’s gross motor needs were so acute that the absence of PT services at the school rendered the student’s entire program inappropriate. The record also showed that the parents had requested referrals for PT from the neuropsychologist and the parent testified that PT was going to be provided by an outside agency but that this had been delayed due to the COVID-19 pandemic. With respect to the balance of the student’s “global needs in academic, fine motor, and speech language skills, the SRO concluded that the record indicates that Gillen Brewer “amply addressed” these needs and also addressed the student’s important social /emotional needs which was not in dispute. The SRO also pointed out that the IHO failed to address Gillen Brewer’s entire programming including its 10:1+2 special class, OT, speech-language therapy, counseling and 1:1 support or explain why the student would be unable to make appropriate educational progress at the school. The SRO concluded that “the totality of the evidence in the hearing record shows that Gillen Brewer provided the student with special education programming that was reasonably calculated to enable the student to make progress appropriate in light of her circumstances”. With respect to progress, based on documentary and testimonial evidence in the record, the SRO concluded that the student “made progress in the program provided” and that this factored in favor of a finding that the private school was appropriate.

Application of a Child with a Disability, Appeal No, 20-195 at pp. 20-23 Dispute: Whether the student made progress in his unilateral placement.

Conclusion: The SRO concluded that the student made progress in his unilateral placement.

Basis of the SRO’s Decision: The SRO pointed out that “a finding of progress is not required for a determination that a student’s unilateral placement is adequate [sic]”. “However, a finding of progress is, nevertheless, a relevant factor to be considered.” With that in mind, the SRO found that the hearing record “supports a finding that the student received academic and social/emotional benefit while attending [The Keswell School”. Additionally, the student’s integrated education plan progress report detailed numerous skills mastered by the student between July 2019 and December 2019. The education plan progress report for that period also set forth that the student “continued to make large strides” in terms of his academic skills. That report also showed that the student made progress with respect to his social and leisure skills.

Additionally, the student’s December 2019 speech and language progress report showed “that the student also demonstrated progress toward his communication objectives”. With regard to Occupational Therapy (OT), the student’s January 2020 OT report indicated that the student “demonstrated s progress toward some of his OT goals”. Further, the student’s mother testified that the student made “meaningful progress”. Finally, the Associate Director of Keswell testified “that with ABA and 1:1 instruction the student had demonstrated consistent progress”.

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Bd. of Educ of the Wappingers Cent. Sch. Dist. v. D.M., 20-653-cv, 2020 WL 7418979, (2d Cir. Dec. 18, 2020) Dispute: District asserts that Ridge is not an appropriate private placement. Parents disagree.

Conclusion: The Second Circuit upheld the determinations of the SRO and the District Court that Ridge was an appropriate private placement.

Basis of the Appeals Court’s Decision: The Circuit Court reviewed the District Court’s decision de novo. It set forth the appropriate legal standard to be that “(a) private placement is appropriate if it is reasonably calculated to enable the child to receive educational benefits, such that the placement is likely to produce progress, not regression”. Regarding the provided services, the Court continued that the private placement does not need “to furnish every special service necessary to maximize a child’s potential”. With respect to this, notwithstanding that Ridge did not offer occupational or speech therapy and that most of the school’s staff were not state-certified, the Court found that the school “provided a small environment designed for autistic children without behavioral issues, along with real-world socialization opportunities” and that the student made progress. The Court concluded that “because the test for parents’ private placement is not perfection, the record supported the conclusion that Ridge provided “educational instruction specially designed to meet the unique needs of a handicapped child”.

Application of the New York City Bd. of Educ., Appeal No 20-131 (Sept. 10, 2020) Dispute: The parents asserts that Middlebridge School (MBS) is an appropriate unilateral placement for the student. The district disagrees.

Conclusion: The SRO concluded that MBS was an appropriate unilateral placement for the student for the 2019-20 school year.

Basis of the SRO’s Decision: Based on a very detailed “updated neurophysiological evaluation” and the specific testimony of MBS’s assistant head of school, the SRO concluded that MBS “offered specially designed instruction to address the student’s individual needs in the areas of academics, particularly with respect to social pragmatics, as well as in the areas of social/emotional and executive functioning, and that the student demonstrated progress while attending MBS” With respect to the restrictiveness of the student’s placement at MBS, which was “a small, outof-state independent boarding and day program for students with learning disabilities” the SRO found that considering the totality of the circumstances MBS was an appropriate unilateral placement for the student for the 2019-20 school year. In this regard, the SRO pointed out that “[w]hile the evidence in the hearing record may not support a finding that a residential program was required for the student, the hearing record indicates that student made progress at MBS and that MBS provided individualized instruction and supports to address the student’s unique needs.

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BURDEN OF PROOF C.N. and M.N. v. Katonah Lewisboro Sch. Dist., No.-19-CV-6793 (CS), 2020 WL 7496435 (S.D.N.Y. Dec. 21, 2020) Dispute: The parents assert that the SRO had impermissibly shifted the burden of proof to the parents. The district disagrees.

Conclusion: The Court held that the SRO did not shift the burden of proof to the parents.

Basis of the Court’s Decision: In a tuition reimbursement matter, the district has the burden of proof to show at the impartial hearing that its recommended placement is appropriate. In this case, the Court agreed with the SRO that the burden of proof was not shifted to the parents when, at hearing, additional information was requested from the parents’ expert to determine his knowledge of the district’s proposed placement. The Court disagreed with the IHO that the burden of proof was shifted to the parents when the additional information was requested and concluded that this “merely” required the witness to “[to] articulate a foundation for an opinion”.

With respect to this, the Court upheld the determination as this only “sought to develop a more comprehensive factual record” at the hearing before determining whether the district’s recommended placement was appropriate.

EQUITABLE CONSIDERATIONS B.Z. v. Hewlett Woodmere Union Free Sch. Dist.,23-CV-01759 (OEM)(SIL), 2025 WL 339140 (E.D.N.Y. Jan. 27, 2025) Issue: Tuition Reimbursement – equitable considerations Dispute: Did equitable considerations support a grant of tuition reimbursement to the parent Conclusion: The District Court decided that equitable considerations supported a grant of tuition reimbursement to the parent.

Key Take Away: If a parent provides timely notice of her disagreement with an IEP, does not delay or obstruct the district’s compliance with the IDEA, and actively participates in and cooperates with the district’s CSE, equitable considerations will support a grant of tuition reimbursement to the parent.

Reasoning: The student has a significant history of complex psychiatric problems. He receives special education services as a student with an emotional disturbance.

The CSE met in June 2021, to develop the student’s IEP for the 2021-2022 school year.

The parent disagreed with the IEP. The next day the parent told the district that she intended to continue the student’s placement at a private school for the 12-month school year beginning summer 2021 and would seek tuition reimbursement.

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In July 2021, the parent requested an impartial hearing asserting “procedural and substantive” challenges to the June 2021 IEP. The CSE met again in October 2021. The parent again disagreed and filed an amended due process complaint.

The IHO decided that the district did not provide the student with a FAPE. She also decided that the student’s private placement was appropriate. As far as equitable considerations, the IHO decided in favor of the parent. She concluded that the parent provided timely notices of her disagreement with the two IEPs, did not delay or obstruct the district’s compliance with the IDEA, and “actively participated in and cooperated [with] the district’s placement process”.

The district appealed to the SRO. The SRO decided that the district offered the student a FAPE and did not reach the appropriateness of the student’s private placement or equitable considerations.

The parent challenged the SRO’s decision in the United States District Court for the Eastern District of New York. Both parties asked the District Court to rule in their favor.

The District Court decided that the district did not provide the student with a FAPE. The District Court also decided that the student’s private placement was appropriate.

The District Court said that the SRO did not reach the question of “the equities” and the Court therefore would review the IHO’s determination. The District Court agreed with the IHO on the facts and that equitable considerations favored the parent.

Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) Issue: equitable considerations Dispute: Whether equitable considerations supported the parent’s request for tuition reimbursement.

Conclusion: Equitable considerations did not support the parent’s request for tuition reimbursement.

Key Take Away: A parent’s claim for tuition reimbursement will be denied if the parent was being unreasonable during the IDEA’s tuition reimbursement process. Here, the parent did not provide the district with the 10-day written notice that she claimed she had given it t. Further, the parent had undermined the administrative hearing process by failing to present evidence that she allegedly had during the IHO hearing and then attempting to introduce the evidence to the SRO after the record was fully developed.

Reasoning: This case concerns a student with a rare brain disease that impairs motor function and who is eligible to receive special education as a student with a traumatic brain injury.

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In October 2022, the parent filed a due process complaint notice. The parent claimed that the district failed to provide the student a FAPE, that the program the parent enrolled the student in was appropriate to the student’s needs, and that equitable considerations supported the parent’s request for tuition reimbursement. Both the IHO and the SRO agreed that the district failed to provide the student with a FAPE, that the parent’s placement was appropriate to the student’s needs but that equitable considerations did not support the parent’s claim that they should be given tuition reimbursement. Even though the parent had a chance to provide evidence to support reimbursement, the parent did not put forth evidence that she actually gave the district 10-days notice. Moreover, the hearing record showed that she tried to introduce evidence to the SRO that she had an opportunity to submit at the impartial hearing but did not.

The parent appealed the SRO’s decision that equitable considerations did not support tuition reimbursement to the United States District Court for the Southern District of New York.

The District Court began its analysis by pointing out that a parent is eligible for tuition reimbursement if 1. the school district’s proposed plan will not provide the student with a free appropriate public education (FAPE), 2. the parents’ private placement is appropriate to the child’s needs, and 3. a consideration of the equities, which is usually based on the reasonableness of the parent’s actions.

The District Court said that there was agreement that the district did not provide a FAPE to the student and that the parent’s private placement was appropriate to the student’s needs. That being the case, the District Court advised that the issue at hand was whether the parent’s claim for tuition reimbursement satisfied the third prong of the three-part test – that is, whether equitable considerations supported the parent’s request for tuition reimbursement.

The parent argued that she should be granted reimbursement because the district failed to provide a FAPE and the denial of a FAPE was so egregious that it justified reimbursement, so the equities fell in her favor. The District Court pointed out that the parent was lumping together the first and third prongs of the above test and that the only part of the test they needed to evaluate here was the third prong -- equitable considerations and the reasonableness of the parents’ actions. The District Court concluded that the parent did not act reasonably. The District Court pointed out that the parent did not provide the district with the 10-days written notice that she claimed she had given it. The District Court further said that the parent had undermined the administrative hearing process by failing to present evidence that she allegedly had during the IHO hearing and then attempting to introduce the evidence before the SRO after the record was fully developed.

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The District Court agreed with the IHO’s and SRO’s denial of tuition reimbursement for the 202122 school year on the basis of equitable considerations.

Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) Issue: equitable considerations Dispute: Whether equitable considerations supported the parent’s request for payment for related services.

Conclusion: Equitable considerations did not support the parent’s request for payment for related services.

Key Take Away: A parent’s claim for reimbursement for related services will be denied if the parent was being unreasonable during the IDEA process. Here, the parent did not provide the district with the 10-day written notice that she claimed she had given the district; that even though the parent claimed that she had “detailed receipts” regarding her payments for related services, she did not submit them to the IHO, the SRO or to the Court; and further that she did not credibly testify as to the contents of the receipts.

Reasoning: This case concerns a student with a rare brain disease that impairs motor function and who is eligible to receive special education as a student with a traumatic brain injury.

In October 2022, the parent filed a due process complaint notice. The parent claimed that the district failed to provide the student a FAPE, that the related services provided to the student were appropriate to the student’s needs, and that equitable considerations supported the parent’s request for reimbursement for payment for the related services in question. Both the IHO and the SRO agreed that equitable considerations did not weigh in the parent’s favor. Despite given a chance to do so, the parent did not provide evidence that her claimed 10-day notice was actually given to the district. And further, although the parent claimed she had detailed receipts showing payment for related services, she did not submit them to the IHO or the SRO. Finally, the IHO concluded that the parent did not testify credibly at the impartial hearing to the contents of her documentation.

The parent appealed the SRO’s ruling related to equitable considerations to the United States District Court for the Southern District of New York. The parent argued that equitable considerations supported her request for payment for related services.

The Court began its analysis by pointing out that a parent is eligible for reimbursement under the IDEA if 1. the school district’s proposed plan will not provide the student with a free appropriate public education (FAPE), 685

2. the parents’ private placement is appropriate to the child’s needs, and 3. a consideration of the equities, which is usually based on the reasonableness of the parent’s actions.

The Court concluded that the parent’s actions did not support her request for reimbursement for payment of related services because those actions were unreasonable. In particular, the Court pointed out that the parent did not provide the district with the 10-day written notice that she claimed she had given it. The Court further said that even though the parent claimed that she had “detailed receipts” of her payments for related services, she did not provide them to the IHO, the SRO or to the District Court. Finally, the District Court concluded that the parent did not credibly testify to the receipts’ contents The District Court affirmed the IHO’s and SRO’s denial of tuition reimbursement for the parent’s payment for related services based on equitable considerations.

A.P. v. New York City Dept of Educ., No. 22-2636, 2024 WL 763386 (2d Cir. Feb. 26, 2024) Issue: equitable considerations, deference Dispute: Did the district court err by approving a grant of 3/8 tuition reimbursement.

Conclusion: The Circuit Court reversed the district court’s award of 3/8 tuition reimbursement and determined thar the district court, which relied on the IHO, erred as a matter of law and reversed the IHO and the district court.

Key Take Away: Once a determination is made that the district has denied the student a FAPE and that the student’s private school placement is appropriate, an IHO or SRO can only reduce a grant of tuition reimbursement as a result of “equitable” considerations. Consistent with this, an IHO or SRO cannot reduce the amount of tuition reimbursement based on a view that the private program is “partially appropriate”. Finally, an IHO or SRO must specifically cite to the particular equitable consideration that it sees as responsible for the reduction in the amount of the tuition reimbursement award. The Circuit Court pointed out that the above involve questions of law and that therefore the courts owe no deference to such determinations of the IHO and SRO. Reasoning: The student in this case is receiving special education services as a student with autism. The student was 13 years old during the 2020-2021school year.

After a determination that the student was not provided a FAPE, the parents enrolled her in a private school for the 2020-2021 school year. At the private school, the parents “opted for remote instruction for the year due to apprehensions about the COVID-19 pandemic”.

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Thereafter the parents “initiated administrative proceedings to seek reimbursement for [the student’s] education”.

The IHO found that the private school “was generally an appropriate private school placement, but awarded [the parents] only partial tuition reimbursement for the 2020-2021 school year due to the nature of [the student’s] remote instruction program”. In this regard, the student received three hours a day of remote instruction and therefore the IHO determined that the student should be reimbursed only for 3/8 of the tuition costs of the private school. The parents appealed to the SRO. “The SRO disagreed with the IHO’s finding that [the parents’] private school placement was appropriate and denied [the parents] any tuition award for the 2020-2021 school year”.

The parents appealed to the district court “seeking review of the SRO’s decision”. “The district court determined that based on [the student’s] progress and the totality of the circumstances, the IHO correctly found that [the student’s] placement addressed her needs, albeit to a limited extent and that [the parents] were entitled to partial reimbursement”.

The parents appealed to the Circuit Court “seeking review of the district court’s partial reimbursement award in lieu of a full reimbursement award”.

The Circuit Court found “that the district court exceeded its discretion in awarding partial tuition reimbursement”. In the first place, the Circuit Court concluded that “the district court did not meaningfully analyze and weigh the equities in determining the tuition award”. In this regard, it said that “the district court noted that “[the district] [did] not appear to dispute that equitable considerations favor[ed] [the parent] for the 2020-2021 school year”. However, “[t]hen [the district court accepted the IHO’s findings that the remote live sessions [the student] participated in for three hours per day was appropriate, and she was therefore entitled to partial reimbursement of tuition”. But the Circuit Court said, “the district court identified no equitable factors that weighed against [the student]”. The Circuit Court concluded that “[t]o the extent the district court reduced the award in its equitable discretion, it erred by doing so without finding that any equities weighed against [the] student”.

Second, the Circuit Court pointed out that the district court “improperly deferred to the IHO’s finding of a partial award”. The Circuit Court pointed out that the district court made its determination to reduce the student’s reimbursement as a part of its analysis of the second Burlington-Carter prong; whether or not the private school was appropriate and not as a part of its determination of the extent to which equitable considerations supported an award of tuition reimbursement. The Circuit Court said that the district court “should have determined only whether the placement was appropriate or not:”.

Finally, the Court said that once the parents pass the first two prongs of the Burlington-Carter test, there is a presumption of a full tuition reimbursement award. The Circuit Court pointed out that “[f]rom this entitlement of full reimbursement, equitable factors are considered in deciding whether to reduce or deny reimbursement”. In this case, the Circuit Court pointed out that “after 687

finding that [the parents] were eligible for relief, the IHO also found that the equities favored [the parents]”. This was improper the Circuit Court indicated, as the district court failed to point to “any equitable factors that justified this reduction”.

The Circuit Court concluded that “[c]ourts must give due weight to state administrative proceedings under the IDEA but owe no deference on issues of law”. The Circuit Court continued by saying that “[b]y inappropriately applying the Burlington-Carter test, the IHO erred in determining the partial reimbursement award. Thus, the district court then erred by relying on the IHO’s award finding”.

The Circuit Court determined that “the judgment of the district court granting in part [the parents’] motion for summary judgment is vacated and the case is remanded for further proceedings”.

Neske v. New York City Dep’t of Educ., 22-2962-cv, 2023 WL 8888586 (2d Cir. Dec. 26, 2023) Dispute: Whether equitable considerations supported the parents’ request for tuition reimbursement.

Conclusion: The Second Circuit upheld the IHO’s, SRO’s, and district court’s conclusion that equitable considerations did not support the parents’ request for tuition reimbursement.

Basis of the Second Circuit’s Decision: In this case, the IHO, the SRO and the district court all found that the student was denied a FAPE for the 2018-19 school year, that the student’s unilateral placement was appropriate, but that equitable considerations did not support the parents’ request for tuition reimbursement.

Given the contour of the case, the Second Circuit advised that it would “consider only whether the district court properly determined that the equities warrant denying [the parents’] request for reimbursement” and that, upon such review, whether the district court abused its discretion.

Further, the Court said that it “must give due weight to the administrative findings” and that “this deference is particularly appropriate when the state officer’s review has been thorough and careful”.

The Court concluded that the district court did not abuse its discretion. In this regard, the “district court agreed with the IHO’s and SRO’s conclusion that that [the parents] had been uncooperative in the process of coordinating [the student’s] placement”. Upon its review, the Court concluded that the record provided “sufficient support” for the district court’s determination, based on the agency’s findings, that [the parents] not only did not cooperate with [the district] but also were likely part of a broader campaign to disrupt the IEP creation process to support the migration of students from [one private school to another] …” The Court pointed out that “dozens of students” at the first private school, including the parents here, “insisted on requesting that a physician be 688

present at the in-person IEP meetings but then failed to attend themselves”. Further, the IHO and SRO found that “when the physicians did attend the in-person IEP meetings at the parents’ behest, the parents were often absent, or the meetings were cancelled at short notice”. “The district court determined that these group cancellations were evidently a delaying tactic designed to stymie the [district’s] effort to create IEPs for the students”.

The Court said that the parents in this case “tracked that obstructive pattern, strongly suggesting that their requests were guided to a relevant degree by the founder of the [second private school] as part of the campaign to shift students from [the first school to the second school] and force the [district] to reimburse tuition costs at the new school without having to go through the normal collaborative process”.

Additionally, the Court pointed out that the IHO and SRO “determined that [the parents] were uncooperative, in part, because they found [the student’s mother’s] testimony to lack credibility” The Court pointed out that “[t]he district court agreed and noted that [the mother’s] testimony contained a number [of relevant] contradictions”. The Court found that “[t]he district court properly relied on the IHO and SRO’s factual findings regarding the credibility and, ultimately, cooperativeness of the parents”.

The Court stressed that “[t]he IEP creation process is meant to be collaborative but the record [in this case] demonstrates that [the parents] were not present for the final IEP team meeting, even though they were afforded the opportunity to participate, and, at the parents’ request, [the district] attempted to arrange a mutually convenient time and place for the meeting to further accommodate [the parents’] schedule”.

The Court found that “[w]hen conducting an analysis of the equities, the district court properly weighed [the parents’] absence from the IEP meeting, likely involvement in the organized campaign to move the students [from one private school to another], and the concomitant inference that their absence and attempts to delay the creation of [the student’s] IEP were taken in bad faith”.

“Given these considerations”, the Court also found that it could not say that the district court “exceeded its broad discretion when it determined that [the parents] were not entitled to tuition reimbursement”.

Application of a Student with a Disability, Appeal No. 23-167 (Oct. 6, 2023) Dispute: Whether equitable considerations favored the parent’s claim for tuition reimbursement.

Conclusion: The SRO found that the amount of direct payment requested by the parent should be reduced by 10 per cent because the parent failed to give prior advance notice to the district of the student’s intent to enroll in the private school including stating their concerns.

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Basis of the SRO’s Decision: The student in this matter “received a diagnosis of bilateral profound sensorineural hear loss as an infant…”. “Around age three the student was fitted for cochlear implants, supported by hearing aids[,]” the later which she had previously used inconsistently. Subsequent to services through early intervention, the student “aged out” of the CPSE program. The student remained in the CPSE program for two additional years at the parent’s expense. The student then attended the “auditory/oral 12:1+1 special class in a special school where for the 2017-18 school year (first grade). “The student attended the same auditory/oral 12:1+1 special class for the 2018-19 school year (second grade) and again for the 2019-20 school year when she repeated second grade”.

An “auditory/oral program” has as its goal “to teach the students to maximize the use of their residual hearing through the utilization of hearing aids or cochlear implants in order to learn spoken language”.

“A CSE convened on January 15, 2020 to formulate the student’s IEP for the second half of the 2019-20 school year and the first half of the 2020-21 school year. The CSE recommended that the student attend the 12:1+1 special class that employed an auditory/oral 12:1+1 teaching methodology” for multiple periods of week for academic subjects. Regarding related services, the CSE recommended OT and five, 30-minute sessions per week of individual speech-language therapy. Among other program components, the CSE also recommended 12-month services.

The parent filed a due process complaint notice that the CSE “failed to thoroughly evaluate the student and develop an appropriate IEP to meet her needs” and gave notice that she would be attending a private school. As a result of an impartial hearing, an IHO concluded that the district offered the student a FAPE and, more particularly, established “that the recommended 12:1+1 special class using the auditory/oral teaching methodology, along with the related services identified in the January 2020 IEP, were appropriate to address the student’s special education needs”. The IHO denied the parent’s request for direct payment to attend the private school.

Upon evaluation, the SRO found that the program recommended by the district did not provide the student a FAPE and that the parent’s unilateral placement met the student’s needs.

Regarding equitable considerations, “[t]he final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Court’s fashioning discretionary relief under ISEA 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” “Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, that they were rejecting the placement proposed by the public agency to provide a FAPE to their child, including 690

stating their concerns and their intent to enroll their child in a private school at public expense.

This statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision”.

In this case, the parent “alleges that she fully participated in the CSE and IEP process, cooperated with the evaluation requests and visited several programs considered by the CSE”. The SRO pointed out that “the parent was present” for the relevant CSE meeting and expressed “concerns”. Nor was there any “indication in the hearing record that the parent impeded the district’s ability to meet its obligations under the IDEA”. Neither did the district “point to any evidence showing that the parents were uncooperative in the development of the student’s IEP”.

However, the SRO also pointed out that the parent did not “submit to the district 10-businessday’s-notice of the unilateral placement prior to her daughter’s enrollment at [the private school]”. More particularly, despite the fact that the parent enrolled the student in the private school in September 2021, the parent did not give notice to the district that she had done so and would be requesting an impartial hearing by letter until November 2020. Consistent with this, the SRO said that “the evidence in the hearing record also fails to demonstrate that the parents informed the district during the most recent CSE meeting of the student’s placement [at the private school] prior to the student’s placement for the 2020-21 school year”. The SRO said that had the parent done so, “the district may have offered to reconvene the CSE at a time when the student’s program could have been effectively amended to address the parent’s concerns before the commencement of the 2020-21 school year.” The SRO continued that “[b]y failing to communicate with the district in the matter contemplated by the IDEA, the parent deprived the district of the opportunity, before the student was removed to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools” The above being the case, the SRO determined to exercise his discretion “to reduce reimbursement for the student’s unilateral placement by 10 per cent of the tuition at [the private school]”.

Davis v. Banks, et al., 21 CV-3265 (PKC) (PK), 2023WL 6214107 (E.D.N.Y. Sept.

25, 2023) Dispute: Whether the equities supported the district’s direct payment to the unilateral placement of the tuition amount.

Conclusion: Affirming the IHO, the Court found that the equities supported the district’s direct payment to the unilateral placement of the tuition amount.

Basis of the Court’s Decision: 691

The student is 9 years old “who is diagnosed with, among other things, intraventricular hemorrhage…, necrotizing enterocolitis with bowel restriction (and revision), a brain cyst, and seizures”. The plaintiff is the student’s grandmother and natural guardian.

In this tuition reimbursement case, the IHO found that the district failed to provide a FAPE to the student, that the parent’s unilateral placement was appropriate, and that the equities favored an award of tuition reimbursement to the parent. Thereafter, the SRO reversed the district’s FAPE determination and did not reach either the appropriateness of the student’s unilateral placement or equitable considerations.

The Court found that the equities supported the guardian’s claim for tuition reimbursement and cited to the IHO decision on that question. More specifically, the Court pointed out that with respect to the size of the district’s payment, the IHO had advised that the unilateral placement provided the student – who had “multiple disabilities” and was “medically fragile” – an appropriate program, and that further, “[h]ad the [district] provided an appropriate program, the [district] would not be facing this large bill to cover the needs of this student”. The Court also cited to the IHO’s statement that “to penalize this extremely needy and multiply disabled student when the district did not provide for an appropriate program would simply be unjust”.

Additionally, the Court cited to the IHO’s statements that “full reimbursement” was “appropriate” where the record shows that the guardian “is unemployed and testified that she cannot afford to pay the cost of attendance at [the private school]” and that “[i]n such a situation, where the parent cannot afford to come up with this amount of funds, the district is required to make direct payment to the school”.

With the above in mind, the Court stated that it would defer to the IHO’s well-reasoned opinion, agreed with the IHO’s decision, and found “that the equities strongly favor the [guardian]”.

Application of a Student with a Disability, Appeal No. 23-102 at pp. 16-18 (July 31, 2023) Dispute: Whether equitable considerations supported a reduction in tuition reimbursement by 25%?

Conclusion: Equitable considerations did not support a reduction in tuition reimbursement by 25%.

Basis of the SRO’s Decision: In this case, the student is eligible for special education services as a student with a traumatic brain injury. The student has received diagnoses of spastic quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut Syndrome, and cortical visual impairment.

In this tuition reimbursement matter, “the IHO found that the parents failed to engage in a good faith consideration of the district’s public-school program and placement prior to enrolling the 692

student [in the private school]”. In particular, the IHO referenced a “social history update which noted that the parents intended to enroll the student at [the private school] for kindergarten”.

“The IHO found that the parents engaged in predetermination when they enrolled the student [at the private school] at least two months before the [relevant school year] and also when they failed to contact or visit the assigned school for the 2022-23 school year”. Based on this, the IHO reduced the amount of the parent’s tuition reimbursement by 25 %.

The SRO held that “[t]he IHO’s ruling was contrary to the holdings of the Second Circuit Court of Appeals which explain that so long as the parents cooperate with the district and do not impede the district’s efforts to offer a FAPE, even if the parents had no intention of placing the student in the district’s recommended program, it is well-settled that their plan to unilaterally place a student , by itself, is not a basis to deny their request for tuition reimbursement”. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014); See also E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014). The SRO explained that “[f]or the same reason that a complete denial is not permissible, the parents’ intentions are not a basis to reduce tuition reimbursement either”.

With respect to the parents’ need to cooperate with the district, the SRO pointed out that “the hearing record reflects that the parents did cooperate with the district’s efforts to evaluate the student, they provided privately obtained evaluative information to the CSE, and fully participated with and meaningfully contributed to the CPSE and CSE discussions”.

With the above in mind, the SRO held that “equitable considerations do not weigh against the parents’ request for tuition reimbursement and the IHO’s findings of parental predetermination and 25% reduction of the tuition reimbursement … must be reversed.”

Z.A.R. v. New York City Dep’t of Educ., 19-cv-2615 (CBA)(PK), 2022 WL 4536241 (E.D.N.Y. Sept. 28, 20220) Dispute: Whether the equities support the parent’s tuition reimbursement claim.

Conclusion: The Court determined that consideration of the equities required a 50% reduction of the tuition to be paid to the private school.

Basis of the Court’s Decision: “On June 20, 2017, a CSE meeting was held to develop [the student’s] IEP for the 2017-18 school year”. Although the private school’s clinical director attended the meeting, neither the parent nor the student’s teachers at the private school did so. “The IEP developed at the June 2017 [CSE meeting] recommended that [the student] be placed in a general classroom setting with periods of integrated co-teaching”. Prior to the CSE meeting, the parent failed to consent to [the student’s] reevaluation.

“On August 22, 2017, [the parent] submitted a Ten-day notice to [the district] informing it that the IEP developed at the June 20, 2017 meeting denied the student a FAPE” and that the parent 693

would place the student at the private school for the 2017-18 school year. On November 9, 2017, the parent submitted a due process complaint notice to the district.

The IHO held eight days of hearings. The IHO decided that the IEP was not appropriate for the student, that the evidence did not show that the private school was appropriate for the student and that equitable considerations “weighed against tuition reimbursement because [the parent] did not cooperate in having the student evaluated, which hampered the development of an IEP”.

On Appeal to the SRO, that administrative officer, decided that the IEP denied the student a FAPE because of the “substantive deficiencies in the IEP”, the private school was an appropriate placement for the student, but that “equitable considerations did not weigh in favor of tuition reimbursement”.

The matter was appealed to the United States District Court for the Eastern District of New York and the matter was referred to a United States Magistrate Judge. The Magistrate “displac[ed] the SRO’s conclusion and awarded the [parent] full tuition reimbursement”. The Magistrate concluded that the district denied the student a FAPE on both procedural and substantive grounds and agreed with the SRO that the private school was appropriate to the student’s needs.

Regarding the equities, the Magistrate “departed from the conclusions reached by the IHO and SRO”. The Magistrate “accepted the SRO’s conclusion that [the parent] was unreasonably uncooperative in refusing consent to [the district’s] request for a reevaluation of [the student]”.

The Magistrate also “acknowledged that [the parent’s] communications with [the district] were inconsistent and contradictory”. The Magistrate held, however, that while the parent “was uncooperative, the procedural and substantive inadequacies in [the student’s] IEP were not the result of [the student’s] uncooperativeness, but rather could be traced to [the district’s] actions” which included “the failure to provide adequate notice of the CSE meeting to [the parent] and to the [private school] and its refusal to postpone the June 20, 2017 CSE meeting”. With this in mind, the Magistrate concluded that “the equities do not weigh against [the parent’s] request for tuition reimbursement, and that [the parent] be granted full tuition reimbursement”.

Objections were made to the Magistrate’s report and recommendation and the matter was referred to the District Judge for review. Among other things, the Court disagreed with the Magistrate’s conclusion that the parent’s uncooperativeness had no effect on the IEP. The Court found that “[c]ontrary to the [Magistrates] [f]inding, the SRO properly determined that [the parent’s] failure to consent to reevaluations hindered [the district’s] attempts to create an IEP. The Court pointed out that the purpose of the reevaluation was to make sure that the IEP was “tailored to the student’s capabilities”. The Court further pointed out that that “[t]he district made multiple attempts to schedule a reevaluation in advance of the CSE, and [the parent’s] noncooperation obstructed their efforts to comply with the [34 CFR 300.303(a)(1)] and provide a FAPE”. The Court concluded “that the [parent’s] non-cooperation deprived the CSE of additional, current evaluative materials that could have aided in forming an IEP”. With respect to this conclusion, the Court said that it was “reasoned” and “entitled to deference”.

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Citing to caselaw, the Court set forth twice that the equites analysis does not just focus on the parent’s conduct but that the district’s conduct is relevant as well. See Florence Cnty. Sch. Dist.

Four v. Carter, 510 U.S. 7, 16 (1993); Forest Grove School Sch. Dist. v. T.A., 557 U.S. 230 (2009); T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 879 (2d Cir. 2016). The Court determined that, contrary to the Magistrate’s conclusion, in this case both the parent’s and the district’s actions contributed to the student being denied a FAPE. Based on the fact that both the district’s and the parent’s actions contributed to the denial of a FAPE, the Court found that the appropriate amount of tuition reimbursement should be reduced by 50%.

Application of a Student with a Disability, Appeal No. 22-150 (Jan. 9, 2023) Dispute: Did equitable considerations support an award of tuition reimbursement to the parent.

Conclusion: The SRO concluded that equitable considerations supported an award of tuition reimbursement to the parent.

Basis of the SRO’s Decision “The final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA”. “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents” The SRO pointed out that “the district has not raised any equitable considerations that would warrant a reduction or denial of the parent’s requested tuition reimbursement”. Further, the SRO pointed out that the parent attended the relevant CSE meeting, “participated during the meeting, shared information from [the private school] with the CSE, and provided the district with timely notice of his intent to place the student at [the private school”.

The SRO found that equitable considerations weighed in favor of the parent’s request for tuition reimbursement.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Do equitable considerations favor the parents’ reimbursement for private tutoring expenses.

Conclusion: The SRO concluded that there was no equitable basis for a reduction or denial of an award of reimbursement for the cost of the parents’ tutoring expenses.

Basis of the SRO’s Decision:

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“The final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Court’s fashioning discretionary relief under ISEA 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” “Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, that they were rejecting the placement proposed by the public agency to provide a FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.

This statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision”.

“By letter dated June 23, 2021, the parents provided the district with a ten-day written notice that as a result of the district’s failure to classify the student and offer an appropriate IEP at the November 2020 CSE meeting, the parents intended to obtain private reading instruction and seek reimbursement from the district for the cost of the instruction. In [further] review of the hearing record there is no reason to find that equitable considerations do not favor reimbursement. The hearing record demonstrates that the parents referred the student to the CSE in writing, provided consent for the district to evaluate the student, provided the district with privately obtained evaluative information, cooperated with the district evaluations … and participated in the November 2020 CSE meeting. Accordingly, there is no equitable basis for a reduction or denial of an award for of reimbursement for the costs of the reading instruction”.

Maysonet v. New York City Dep’t of Educ., 22 Civ. 1685 (LGS), 2023 WL 2537851 (S.D.N.Y. Mar. 16, 2023) Dispute: Whether the parents’ conduct supports a determination that the tuition for the private school should be reduced by 20% on the basis of equitable considerations.

Conclusion: The Court affirmed the SRO’s decision that it was appropriate to reduce payment of the private school tuition by 20% on the basis of the parents’ “unreasonableness”.

Basis of the Court’s Decision: According to the Court, “[t]he IDEA identifies several factors that could warrant a reduction in the reimbursement to parents for the cost of a private placement after a school district fails to offer a FAPE. These include the parents failing to provide notice of the child’s new placement, preventing the child from being evaluated by the school district, and other unreasonableness”.

Citing to caselaw, the Court further wrote that “[t]he Second Circuit has further described 696

circumstances that might warrant a reduction in reimbursement. The district court may consider many factors, including, inter alia, whether [parent’s] unilateral withdrawal of [the] child from the public school was justified, whether [the parent] provided the [d]epartment with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether [the parent] should have availed herself of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the [district], or whether the arrangement with the school was fraudulent or collusive in any other respect”. Finally, the Court indicated that “[n]either of these lists is exhaustive, and a district court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable”.

The SRO reduced the amount of tuition to be paid by 20% based on the conclusion that the parent did not cooperate with the CSE. The Court determined that a reduction of 20% in the amount of tuition to the private school was supported.

The Court advised that the “[parents’] non-participation in the formulation of the … IEP [was] the type of unreasonableness with respect to actions taken by the parents, that supports an equitable reduction in the reimbursement”. In particular, the Court pointed to the fact that “[the] CSE repeatedly rescheduled the meeting to develop [the student’s] IEP, ultimately settling on a Monday at [the parents’] request. Starting well in advance of this meeting, [the] CSE provided notice to [the parents] multiple times by various methods, in an attempt to ensure [the parents’] and [the private school’s] participation”. The parent did not attend the CSE meeting and “stated that she did not attend the meeting because [the district] physician was going to attend telephonically, rather than in person”. The Court said that the parent did “not explain why this justified her non-participation, particularly without notice to the CSE”. The Court further said that the parents “also stated multiple times that they would provide the CSE with [the student’s] progress reports once a meeting was scheduled, but they did not do so”. The Court advised that “[t]his behavior was unreasonable and a negative equitable consideration under the IDEA, supporting the SRO’s deduction”.

The Court concluded that, under the circumstances, “it defer[red] to the SRO’s greater expertise as to the amount of such a reduction” and said that “[t]he SRO’s analysis of the equities [was] well-supported by record evidence and demonstrates careful review of the record”.

The parents argued that because the district “concedes it did not provide [the student] a FAPE, it is precluded from arguing that the equities weigh in its favor”. The Court rejected this argument and said “that denial of a FAPE and consideration of the equities are distinct prongs of the Burlington/Carter analysis”. The parents also argued that “their attendance at the CSE meeting was not required.” Rejecting this, the Court said that this was the case but that federal regulations “make clear that parental attendance is preferable and that districts should take steps, including early notification and flexible schedule, to include the parents”. The parents, finally, argued “that they were not obligated to produce [the student’s] progress reports and that any failure to produce the reports was attributed to [the private school] rather that [the 697

parents]”. The Court agreed that the parents “were not legally obligated to participate in the IEP process” but pointed out that “they repeatedly stated that they would provide the progress reports…in the weeks leading up to the [CSE meeting], and [because they did not do so, the district] was left to formulate an IEP without them”.

Application of a Student Suspected of Having a Disability, Appeal No. 22-153 (Jan. 2023) Dispute: Did equitable considerations support the parents’ claim for tuition reimbursement.

Conclusion: The SRO concluded that equitable considerations supported the parents’ claim for tuition reimbursement.

Basis of the SRO’s Decision: “The final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA”. “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents” In this case, the SRO found that equitable considerations favored tuition reimbursement. In particular, the SRO found that “[t]he hearing record demonstrates that the parents referred the student to the CSE in writing, provided consent for the district to evaluate the student, provided the CSE with privately obtained evaluative information, cooperated with the district’s evaluations, timely provided 10-day notice of their intent to unilaterally place the student at district expense, and participated in the April 2022 CSE meeting, which was delayed considerably by the district through no fault of their own.”

T.K. and S.K. v. New York City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) Dispute: Whether the equities favored tuition reimbursement.

Conclusion: The Circuit Court agreed with the District Court and disagreed with the IHO and the SRO and found that the equities favored tuition reimbursement.

Basis of the Circuit Court’s Decision: The Circuit Court agreed with the District Court and disagreed with the IHO and SRO that the equities favored the parents. The Circuit Court reviewed the record and said that it “confirms the District Court’s view that [the parents] consistently made good faith efforts to resolve [the student’s] bullying problem at her public school, and generally cooperated with the [district] in the development of [the student’s] IEP”. The Circuit Court said that “[t]he record gives no sense that prior to the [district’s] refusal to resolve the bullying the parents were anything less than fully committed to a public-school education for [the student]”. The Circuit Court said that 698

“[m]oreover, [the parents] promptly notified the [district] of their intention to place [the student] at [the private school] after they received the IEP”. The Circuit Court pointed out that “ultimately [the parents’] decision to place [the student] at [the private school] reflect[ed] a good-faith effort to find an appropriate placement for [the student] not just a mere preference for a private school environment”.

Disagreeing with the IHO, the SRO, and the district but agreeing with the District Court, the Circuit Court also found that “making a precautionary private school deposit prior to the meeting with public school officials during which the IEP was developed” was not inconsistent with the equities favoring the parents. In this regard, he Circuit Court flagged that the private school “required [the parents] to put down a deposit long before that meeting, and waiting would have imperiled their ability to secure a spot for [the student] in the event that their concerns about bullying remained unaddressed”.

Finally, the Circuit Court said it agreed with the District Court that “to the extent that [the parents] had an adversarial relationship with school officials, the IHO and SRO overlooked the fact that the same officials shared responsibility for that relationship by ignoring or rebuffing the parents’ repeated attempts to raise their concerns about bullying with teachers and administrators”.

Application of a Student with a Disability, Appeal No. 22-065 (July 25, 2022) Dispute: Whether equitable considerations support the parent’s claim for tuition reimbursement.

Conclusion: The SRO found that equitable considerations supported the parent’s claim for tuition reimbursement.

Basis of the SRO’s Decision: “The final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA”. “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents” In the above referenced case, the SRO pointed out “that the parents cooperated with the …CSE, did not impede or otherwise obstruct the CSE’s ability to develop an appropriate special education program for the student, and did not fail to raise the appropriateness of an IEP in a timely manner or act unreasonably.

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R.G. v. New York City Dept. of Educ., No. 18-CV-11219 (JPC)(RWL), 122 LRP 3694 (S.D.N.Y. Jan. 24, 2022). 141 Dispute: Whether equitable considerations support the parents’ claim for tuition reimbursement.

Conclusion: The Court upheld the State Review Officer’s conclusion that equitable considerations did not support the parents’ claim for tuition reimbursement for a period of two months.

Basis of the Court’s Decision: A student is eligible for tuition reimbursement if the district does not provide the student with a FAPE, the school selected by the parent is appropriate, and equitable considerations favor the parent’s claim.

In this case, the question is whether equitable considerations favor the parents’ claim. 142. With respect to equitable considerations, “a number of factors may be considered in assessing the equities. Some are codified in the IDEA, which provides that reimbursement may be reduced or denied if (1) the parents failed to timely inform the IEP Team at the most recent IEP meeting attended prior to removing the child from public school – or failed to provide the 10-day written notice -- that they were rejecting the placement proposed to provide a FAPE for their child, including stating their concerns and their intent to enroll the child in a private school at public expense, or (2) the parents failed to make the child available for evaluation, or (3) the parents’ actions were unreasonable. 20 U.S.C. Section 1412 (a)(10)(C)(iii)”. “This list is non-exhaustive.”

Relevant to this case is the fact that in New York State a parent who voluntarily places a child at a private school may obtain special education services at that private school. With respect to this, the services to be provided are determined at a CSE meeting. As a result of the parent’s expressed interest in obtaining services as a part of their voluntary placement, the CSE deliberates and provides the parent with an Individualized Education Services Program (IESP). If there is a dispute regarding the services to be provided to the parent, the same procedures that apply to a dispute relating to an IEP apply. The parent must advise the district by June 1 prior to the beginning of a school year whether they wish to receive IESP services.

Additionally, and further, some facts are necessary in order to understand the Magistrate Judges’ decision. On or about May 21, 2017, the parents signed an agreement with a private school to reserve the child a place at that private school. The parents also obtained “tuition refund insurance” to be used in case they changed their mind regarding the student’s attendance at the private school. The CSE met on June 28, 2017, to discuss the student’s needs. The parties dispute what occurred during this meeting. The parents set forth that they informed the CSE that they The District Court adopted the Magistrate Judges report and recommendation on February 11. 2022 (see 80 IDELR 166.

141

As set out in the decision, the parents and the district agree that the district did not provide the student with a FAPE. Additionally, the district did not appeal the Impartial Hearing Officer’s decision that the school selected by the parents was appropriate.

142

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were “completely open” to and wanted the student to attend the district school that was “around the corner” from their residence. The school psychologist, who also attended the CSE meeting, set forth instead that at that meeting, the parents advised the CSE that they were placing the student at a private school and that “[a]ll they want[ed] were services”. The next day and on June 29, 2017, the district “issued a prior written notice to [the student’s] parents.” The notice “recommend[ed] that the student be placed in a [district specialized school] and also provided with related and supplementary services...”. The notice “referred to the June 28, 2017, meeting as an IEP meeting and stated that an [IEP] had been developed”. According to the school psychologist’s testimony at the impartial hearing, the notice “must have been a mistake because the CSE never recommended a specialized school”. “The same day, however, the CSE developed an IESP – not an IEP -- for the 2017-2018 school year”. “The IESP, which the parents received, … acknowledged that [the student] had been parentally-placed at a non-public school … and recommended special education teacher support services” and related services. Subsequent to this, the district “never informed the [student’s parents] of a specific public specialized school for [the student] to attend and never developed an IEP for the 2017-2018 school year”. “On or about August 16, 2017, [the student’s] mother sent a ten-day notice letter to the CSE. The letter stated that the parent was not in agreement with the [district’s] recommendation for programming and placement for the 2017-2018 school year, as it is not appropriate to meet [the students] needs.

The [district] has failed to recommend an appropriate program and placement for [the student].

Therefore [the student] will continue to attend [the private school] for the 2017-2018 school year”…. “The letter made no mention of [the district’s] having provided an IESP and not an IEP”.

The Magistrate Judge found that “[t]he equitable factors in this case are not decidedly one-sided” and agreed that the State Review Officer (SRO) “reasonably determined, the overall weighing of equitable factors warrants denying the [parents’] request for the two-months of [the student’s] 2017-18 tuition that was not reimbursed” as a result of pendency.

Regarding this, the Magistrate Judge found that “the parents communicated their intent to parentally place [the student] in private school at their own expense” in a letter dated [May 17 or May 21, 2017]. The notice of intent … [was] clear and direct. It states that the parents have placed [the student] in a non-public school at the parents’ expense and that the parents want their child to continue receiving special education services”. The parents argue that they “had not actually made a decision to send [the student] to the [private school] at that time but instead submitted the parental placement notice to meet the [June 1] deadline for parental placement notification and requesting services”. Regarding this, the Magistrate Judge “agree[ed] with the parents that they should not be penalized for essentially preserving their rights”. The Magistrate Judge also said that “[a]t the same time, however, the parents did not add any qualification to the notice of intent suggesting that enrollment at their own expense was conditional in any way” in that if the district subsequently provided the student with a FAPE the student would attend the public school. The Magistrate Judge said that this too “may be forgiven” as the parents were using a district form with blanks to complete and there was not a blank on the form “to append any conditions or qualifications”.

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Moreover, as it turned out, the parents postponed the CSE meeting form May to June 2017, and the Magistrate Judge said that “[h]ad the CSE meeting occurred before the parents submitted their [May 2017] notice of intent, the [amount of time between the notice of intent and the June 1, 2017, deadline] may have been avoided”. However, “[t]he Record” the Magistrate Judge said “does not provide any evidence that the May CSE meeting would have taken place early enough in May for the parents to file the notice of intent after the CSE meeting and within the [June 1] time frame necessary to meet the deadline for filing a request for special education services.”

“As proof that the parents had not made a definite decision to parentally place [the student] at their expense, they emphasize their having obtained tuition insurance in case they made a later decision not to send [the student] to [the private school]”. “Regarding this, the Magistrate Judge said that this was “of “limited weight” as there was “no evidence in the Record that [the student’s] parents notified the CSE or [the district] that they had obtained tuition insurance” and that as a consequence, the district “had no knowledge that the parents were merely preserving their rights to request supplemental services.”

The parents “argue that, in any event, the mother informed the CSE at their meeting on June 28, 2017, that she remained open to a public-school placement” and more specifically, to the public school that was” around the corner” from the family’s residence. As earlier said, the Magistrate Judge noted that this was “disputed and contradicted” by the district. “But even assuming that the [parent] was correct,” the Magistrate Judge said that their “lack of action” following the CSE meeting by not “contact[ing] the CSE or [the district] to ask why they had received an IESP (based on [a voluntary] parental placement) and had not yet received an IEP for the regular school year” was “problematic”. The Magistrate Judge further pointed out that “when the parents notified [the district] in their August 16, 2017, 10-day letter that they did not agree with the 2017-2018 recommendations and would place [the student] at [the private school] at the public’s expense” that, contrary to the IDEA statute, “they did not give any [specific] explanation” and “did not ask for an IEP instead of an IESP” and that, as a consequence, “the parents did not give the district a sufficiently informed opportunity to address and potentially remedy the problem”.

The Magistrate Judge said that the above “lapses” could be “forgiv[en]” “if the parents did not understand the differences between an IESP and an IEP”. The Magistrate Judge said that, however, the parents did understand this difference and pointed to the fact that the parents do not contend that they did not know the difference between the two and that the mother testified at the impartial hearing “that she understood that an IESP would be implemented only in private school and that the parents would have to be paying for the private school for the IESP services to be available”, The Magistrate Judge said that “the parents are not solely to blame” here. He pointed out that the district’s June 29, 2017, notice, dated the day after the CSE meeting, “significantly confused matters” as it “stated unequivocally that the parents had attended an IEP meeting on June 28, 2017 and that an IEP had been developed and recommended that [the student] be placed in a 702

[district] Specialized School and receive related services for both the regular and extended school year”.

As indicated above, the school psychologist testified at the impartial hearing “that the information in the June 29, 2017 notice of [the district’s] recommendation must have been a mistake”. The Magistrate Judge said that “if so”, it “was the [district’s] mistake not the parents” and that given the districts “faulty notice, the parents were given every reason to believe that [the district] recommended placement of [the student] at a specified public school” rather than the public school “around the corner”.

The Magistrate Judge went on to say that the parents were “well aware” “that the district never provided the parents with an IEP …but instead provided an IESP” “but found that the parents, knowing the difference,” between the two “never followed up to inquire why they received an IESP and not the IEP that supposedly had been developed as stated in the [district’s] June 29, 2017 notice”. The Magistrate Judge said that this all “was consistent with [the parents] having informed the [district] that they intended to parentally place [the student] at their own expense and seek supplemental services.” Regarding this, the Magistrate Judge pointed out that in the case of the 2016-2017 school year the parents had filed a due process complaint notice that the district had provided the student with an IESP and not an IEP. The Magistrate Judge pointed out that the instant matter was “not a case where the parents explicitly refused to cooperate with [the district]”. The Magistrate Judge also stated his agreement with the parents that “as a general matter, the onus should not be put on parents to remediate the blunders made by [the district] in issuing a prior written notice recommending a public school and referencing an IEP and then failing to act with regards to those very recommendations”. The Magistrate Judge continued that “in the circumstances of this case, the fact that the parents did not specify their concerns about having received an IESP and not an IEP for 2017-2018 as they had for the previous year was unreasonable and not in keeping with the obligation to cooperate with the [d]istrict throughout the process to ensure their child received a FAPE”.

The Magistrate Judge found that “taking all the facts together”, “the SRO’s decision was wellreasoned and supported by the Record”. Regarding that decision, the Magistrate Judge pointed out that the “the SRO acknowledged that the parents already had received reimbursement for most of the school year by virtue of pendency and also had received the special education services prescribed by the IESP, leaving unreimbursed only the time period between [the student’s] enrollment at [the private school] on September 6, 2017, and the filing of the due process complaint on November 3, 2017”. The Magistrate Judge further pointed out that “[t]he amount in controversy [was] about twenty percent of the 2017-2018 school year tuition”. In addition, the Magistrate Judge said that “[g]iven the contribution of both parties to the state of affairs, [it agreed] that the SRO reasonably determined that the equities do not weigh in favor of reimbursement for that limited [two month] period”.

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Donohue v New York City Dep’t of Educ., 120-CV-1942-ALC-KHP, 2021 WL 4481344 (S.D.N.Y. Sept 30, 2021) Dispute: Whether equitable considerations required that tuition and other relevant costs be reduced by 25%?

Conclusion: The Court determined to uphold the SRO’s determination that equitable considerations required a 25% reduction in reimbursement of the student’s tuition and other relevant costs.

Basis of the Court’s Decision: The SRO concluded “that [the] parent’s conduct was unreasonable, largely due to his refusal to provide the CSE relevant documentation, including progress reports, about [the student’s] performance at his private school] without justification and his pattern of often eleventh hour objections to meeting notices and rescheduling requests for CSE meetings”.

“In short [the SRO] found that the evidence convincing show[ed] that at times the parent was unreasonably difficult and frustrating for district personnel to work with.” The SRO concluded that rather than find that the parent’s request should be denied in its entirety it should be reduced by 25%. This, in light of the fact that the district held two CSE meetings without parental attendance, one of which was held without any notification to the parent.

In response to the SRO’s decision, the parent brought an appeal to the United States District Court in the Southern District of New York. In the case before it, the Court identified the “narrow issue” to be “whether the SRO erred in determining, based on the third prong of Burlington Carter, that the equities favor a 25% reduction of reimbursement for tuition, related services, and transportation…”.

The Court pointed out that according to statute “reimbursement may also be reduced or denied upon a judicial finding of unreasonableness with respect to actions taken by the parents”. The parent cited case law and argued that the SRO erred “in making an adverse finding against parent on equitable grounds”. The Court distinguished the authority cited by the parent and rejected the argument that the district’s denial of FAPE precluded the reduction of tuition reimbursement based on equitable considerations. The Court held that according to the record, the parent “was unreasonable throughout the IEP process and made it difficult for the district to work with him to prepare for the 2018-19 IEP”. The Court pointed out that upon the record before it, the “[p]arent cannot claim that he played no role in impeding the IEP process whatsoever “. The Court pointed out that “[i]ndeed [the parent] did not attend every scheduled IEP meeting as multiple requests to reschedule were made (sometimes at the eleventh hour) and with little reasonable explanation considering the district’s close proximity to the annual review deadline; he was a no show for several evaluation appointments; and he failed, after requests over email, phone, and by letter, to provide progress reports and other documentation in preparation for the June 2018 CSE meeting”. With respect to whether the SRO’s 25% reduction was appropriate, the Court concluded that the SRO did not commit error. The Court found that the SRO’s decision was owed judicial deference because of its “thoughtful and careful equities analysis” and because the SRO pointed out that the record evidence “convincingly showed that … parent was 704

unreasonably difficult and frustrating to district personnel to work with”. The Court also rejected the parent’s out of date case law and concluded “that as a matter of policy, it should not modify or reverse the 25% reduction set by the SRO. Application of a Student with a Disability, Appeal No, 21-024, p. 16 (Mar. 17, 2021) Dispute: Parents assert that equitable considerations support their claim for tuition reimbursement. Neither the district nor the IHO challenged the parents’ evidence or further addressed this issue.

Conclusion: Equitable considerations supported the parents’ claim for tuition reimbursement.

Basis of the SRO’s Decision: Parents assert before the IHO that they paid $1,000 toward the costs of Gillen Brewer, that they were unable to afford the remainder despite being obligated to do so, that they cooperated with the CSE, and that they provided a timely notice of unilateral placement to the district.

Application of a Child with a Disability, Appeal No, 20-195 at pp. 23-24 Dispute: Whether equitable considerations support the parents’ claim for tuition reimbursement.

Conclusion: The SRO concluded that equitable considerations supported the parents’ claim.

Basis of the SRO’s Decision: The SRO concluded that (1) “the district has not raised any equitable considerations that would warrant a reduction or denial of the parents’ requested tuition reimbursement” (2) “the parents communicated with the district regarding the need for a CSE meeting to develop an IEP for the 2019-20 school year” and (3) when a CSE meeting was not held, the parents “gave the district timely notice of their intent to unilaterally place the student at Keswell.

Application of the New York City Bd. of Educ. Appeal No. 20-131 (Sept. 10, 2020) Dispute: The parents assert that equitable considerations support their tuition reimbursement claim. The district disagrees.

Conclusion: The SRO concludes that equitable considerations support the parents’ claim for tuition reimbursement.

Basis of the SRO’s Decision: The SRO concluded that “at all times the parents cooperated with the CSE process” and that no “minor irregularities” rose to “the level of non-cooperation or violation of procedural requirements”. Regarding Covid, the SRO concluded that even though the student returned home from the residential; school because of the pandemic, the student “continued to receive many of the special education supports, services, and individualized instruction to meet [the student’s] unique needs through Middlebridge’s (MDS) remote learning program.

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Application of a Student with a Disability, Appeal No. 20-101 (8/3/20) Dispute: Parents assert that equitable considerations support their tuition reimbursement claim.

District asserts they do not.

Conclusion:

SRO concludes that equitable considerations support the parents’ claim for TR.

\Basis for SRO’s Decision: The SRO pointed out that the parents shared their private evaluation; attended the relevant CSE meeting; gave the district timely notice of their intent to unilaterally place the student at the private school; that the hearing record presented no indication that the parents did not cooperate with the CSE; and advised that it is “well settled” that even if the parents had no intention of placing the student in the district’s program, that was not a basis for denying the parents’ request for TR.

TUTORING D.C.G. v. New Y0rk City Dep’t of Educ., 23 Civ. 1337 (JPC)(JW), 2024 WL 1343598 (S.D.N.Y. Mar. 30, 2024) Issue: Tuition and/or services -- tutoring Dispute: In this case, was an award of compensatory education in the form of 700 hours of oneto-one tutoring necessary to address a denial of FAPE for two consecutive school years.

Conclusion: The Court concluded that in this case an award of compensatory education in the form of 700 hours of one-to-one tutoring was not necessary to address violations of FAPE for two consecutive school years.

Key Take Away: The Court held that in this case compensatory tutoring was not required as the student’s unilateral placement was addressing her needs and she had made significant progress.

Reasoning: The student is eligible for special education as a student with a learning disability. At the time of the lawsuit, the student was seventeen years of age. She attended eighth grade at a public school during the 2019-20 school year. During ninth grade the student “received a combination of hybrid and remote learning” at the same public school during the 2020-21 school year. The student was assessed in the Spring of her ninth-grade year by a Ph. D provider of tutoring services who “strongly recommended” at that time that she receive 700 hours of “one-on-one multi-sensory tutoring”. In March 2021, the district held a CSE meeting. At that time, the parents requested that the student be placed at a nonpublic school. The district rejected that request and the CSE recommended that the student continue to attend an “ICT class” at a public school. “The IEP created after the meeting characterized the student’s grades for English, AP Human Geography, and Earth Science as below grade standards and [the student’s] grades for Algebra II as exceeding grade standards. The student finished the school year “with a cumulative average of 80.50 percent and earned twenty-one credits toward graduation”. On August 25, 2021, the parents advised the district that they intended to unilaterally place the student at a private school and 706

seek payment for tuition and an award of compensatory education. The student attended the private school for the entirety of the 2021-22 school year, when she was in the 10th grade.

The parents filed a due process complaint notice on September 1, 2021. The complaint alleged that the district failed to provide the student with a FAPE for the 2019-20, 2020-2021, and 202122 school years and requested 700 hours of compensatory education “in the form of private tutoring services for the 2019-20 and 2020-21 school years for the lack of a FAPE in those two school years.

At the impartial hearing, the district conceded that it had failed to provide the student a FAPE for the 2019-20, 2020-21, and 2021-22 school years. The IHO concluded that the private school was appropriate for the student and awarded the parents’ payment for tuition for the 2021-22 school year. The IHO denied the parents’ request for “compensatory tutoring”, “finding that (1) [the private school] had the depth and breadth of individualized and specialized curriculum and services to adequately address the student’s unique needs and (2) [the student] had made significant progress under her current program, which the IHO noted included Special Education Teacher Support Services”. The parents appealed the IHO’s denial of compensatory education to a State Review Officer, who denied the parents’ request for relief and dismissed the appeal.

In his decision, the SRO concluded that “the IHO was reasonable in finding that [the private school] was addressing [the student’s] needs, that the student had made significant progress at [the private school] and that although the IHO understood the parents’ fears, the parents’ request for compensatory education was not supported by the evidence”.

The parents proceeded to Federal Court by filing a lawsuit on February 16, 2023. The matter was referred to a United States Magistrate Judge, who concluded on February 15, 2024 “that both the IHO’s decision and the SRO’s decision were well reasoned and adequately supported by the evidence”. Among other things, she also concluded that the SRO’s decision “was entitled to deference” and that there was no error in the refusal of the IHO and SRO to provide the student with “compensatory education in the form of 700 hours of one-on-one tutoring”.

The parents filed objections to the Magistrate’s decision. The parents argued that the Magistrate “erred in deferring to the SRO decision, in finding the SRO’s decision to be consistent with the weight of the evidence, in concluding that [the student] had reached grade level functioning while at [the private school], and in determining that gaps resulting from the prior FAPE denials had been bridged during [the student’s] attendance at [the private school]”. As a result of its review of the parents’ objections, the Court concluded that the Magistrate correctly found that it should defer to the SRO’s decision and in finding that the decision was consistent with the weight of the evidence. With respect to the student’s academic progress during the 2021-22 school year when the student was enrolled at the private school and in particular whether the student was performing on grade level by the time the case was before the IHO, the Court found that this issue was not relevant as the SRO did not make this finding but instead concluded that “any prior gaps caused by the FAPE denials had been bridged and the SRO rested his conclusion on that finding”. Emphasis supplied. Further, the Court concluded that it was appropriate for the 707

SRO to rely on this question. This is because, the Court said, that compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” See Doe v.

East Lyme Bd. of Educ.,v, 790 F.3d 440, 123 (2d Cir. 2015). Regarding the claim that the Magistrate erred by concluding “that the SRO determined that the private school] had erased all of [the student’s] academic benefits, the Court pointed out that no such SRO determination had been made. As indicated before, the determination that had been made was that the Magistrate had agreed with “the SRO’s clear findings that any deficits caused by the FAPE denials had been bridged. Emphasis added.

Finally, the parents asserted “that denying their requested compensatory education is contrary to Second Circuit precedent because such a decision renders the student’s right to a FAPE during the 2019-20 and 2020-21 school years illusory, and it violates the principle that Congress did not intend to create a right without a remedy”. Here, the Court pointed out that the student’s “right to a FAPE is not illusory nor is it a right without a remedy because the SRO found that the damage she suffered – the educational progress she lost due to the FAPE denials – had been adequately remedied by the instruction she was receiving at [the private school]”. The Court pointed out that any instruction that would have been ordered in addition to this would have amounted “to a supplemental amount of monetary damages, which is impermissible under the IDEA.”

Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023) Dispute: Whether the parents met their burden in order to receive reimbursement for private tutoring services provided to the student.

Conclusion: The SRO concluded that the parents did not meet their burden to receive reimbursement for private tutoring services provided to the student.

Basis of the SRO’s Decision: The student attended a private school for the 2020-21, 2021-22, and 2022-23 school years. “In April 2021 (pre-kindergarten), the parents became aware that the student had been spending much of his school day in the principal’s office due to behavior problems.” At that time, the parents made arrangements and “hired a behavioral specialist to observe the student and provide guidance to his teachers”. During the fall of the 2021-22 school year and through February of that school year, the parents made private payments to provide the student with an OT evaluation, OT services, and a special education itinerant teacher services (SEIT)/behavior specialist. Further, during the 2021-22 school year the student received private tutoring. At the end of the 2021-22 school year, the parents worked with the school so that the student would be “paired with a supportive team of teachers for the following school year”.

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In early 2022, because of his “continued struggles in the classroom”, the private school suggested that the student be evaluated by the district to determine his eligibility for special education services. The student received a number of evaluations in February and March 2022.

The CSE convened on April 5, 2022 and found the student eligible for special education as a dually enrolled student with an emotional disturbance and created an individualized education services program (IESP) for the student with an implementation date of May 3, 2022. The CSE recommended that the student receive OT, individual counseling, and a full-time 1:1 paraprofessional. The CSE also completed an FBA during that meeting. The parents had the student privately evaluated in October and November 2022, which resulted in an evaluation report in December 2022.

The parents filed a due process complaint notice dated April 3, 2023 alleging that the district failed to provide the student with a FAPE during the 2020-21, 2021-22, and 2022-23 school years.

Among other things, the parents alleged that the district failed in its child find obligations for the 2020-21 school year and a portion of the 2021-22 school year. For relief, the parents requested reimbursement for the OT, SEIT, and tutoring services they had provided, an order to fund a 1:1 behavioral support professional an independent FBA and BIP, reimbursement for the October 2022 OT private evaluation and the December 2022 private neuropsychological evaluation, and to fund appropriate compensatory services.

Among other things, the SRO determined that the district did not meet its child find obligation and thus it failed to provide the student with a FAPE for, among other periods, the 2021-22 school year. Relative to this, the parents asserted that, contrary to the child find provisions of the IDEA, the district did not have appropriate procedures in place to locate, identify, and evaluate all nonpublic school students located in the district. Notwithstanding this, the district failed to come forward and show how it did.

As indicated above, during the 2021-22 school year the parents provided the student with, among other services, private tutoring. Such services are reimbursable in accordance with the Bulington-Carter test.143 Since the SRO determined that the district did not provide the student with a FAPE for the 2021-22 school year, the questions become under Burlington-Carter, whether the private tutoring services are appropriate for the student and whether there are equitable considerations that would disfavor an award to the parents.

With respect to the appropriateness of the tutoring services, upon review, the SRO concluded that “the student’s intellectual and academic skills were average or above average in most areas and there was no indication in the hearing record that the student required academic tutoring to address his needs related to his disability.” The SRO said that there was “no information concerning what [the tutoring provider] worked on with the student … “. “The only information regarding what the student worked on during his [tutoring] sessions were presented by the It is also appropriate for the district to directly pay the provider under circumstances showing proof that the parents are legally obligated to pay but do not have adequate funds to do so.

143

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parent through affidavit testimony and in the due process complaint notice”. The student “responded well to intensive 1:1 support he received from the [] private tutoring”. However, the SRO noted that “[p]rogress alone does not establish that the private services offered were adequate and appropriate education under the IDEA” See Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003). In summary, the SRO concluded that “[t]here is no evidence that the [] private tutoring services identified the student’s needs and then provided services specially designed to address his identified needs”. Moreover, the SRO said that “the hearing record lacks sufficient information about the services the student received”.

With the above in mind, the SRO found that the parents did not meet their burden to prove that the private tutoring services were appropriate for the student and that there was therefore no reason for them to be reimbursed for such services.

Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (Mar. 23, 2023) Dispute: Should the parents be reimbursed for private tutoring.

Conclusion: The SRO concluded that the parents should be reimbursed for private tutoring expenses.

Basis of the SRO’s Decision: “Regarding a parental request for private reading instruction, the issue is whether the student’s reading instruction constituted appropriate unilaterally obtained services for the student such that the cost is reimbursable to the parent”.

“A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of the student”.

According to the Second Circuit “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational 710

benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” In this case, the student was dyslexic and possessed underlying reading deficits. A private psychologist conducted a psychoeducational evaluation of the student. The evaluator concluded that the student “met the IDEA classification criteria as a Student with a Specific Learning Disability in Reading (decoding)” and also “met the diagnostic criteria for dyslexia (languagebased reading disability). The evaluator “determined that the student required systematic, explicit, intensive and individualized reading intervention such as, among others, the Wilson Reading Method. The evaluator also indicated that such instruction needed to be “delivered by a skilled reading teacher who was not only trained in the program of choice, but was knowledgeable about the syllable patters in the English language and how to explicitly and systematically teach them. In addition, the private psychologist found that phonemic awareness exercises as part of the student’s reading intervention were crucial, and that her spelling program should be aligned with her reading intervention. Further recommendations included additional reading-specific interventions such as word level interventions, good phonics instruction, as well as advanced word study with attention to morphological awareness”.

“The parents hired a private tutor (tutor)… who possessed a Wilson Reading Certification, level one”. The tutor testified that “she was certified to instruct students who had been labeled with reading disabilities, specifically dyslexia … how to decode and encode words”. The tutor provided services weekly for about an hour to an hour and 15 minutes in a small group with the student’s sister.

The tutor also testified that she had read the private evaluator’s report and that “the errors that the student made during the evaluation were very similar to the errors that the tutor saw the student making”.

The tutor testified that the Wilson program was appropriate because it addressed the “behavior and strategies that students with dyslexia implemented that were not always very good.” In her tutoring, the student used the Wilson method to assesses the student’s reading and spelling skills, identify strengths and weaknesses of the student’s reading and spelling, to teach the student so as to improve the student’s reading and spelling, and to identify the student’s progress and continuing needs.

She advised where the student currently was and his current needs.

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Regarding the student’s progress, the tutor testified that the student “had mastered book one and had moved to book two” of the Wilson program. “The tutor commented that the student was doing really well with the Wilson reading program, that she was engaged, and that the student should continue with the program”.

The SRO advised that given the “description of the private reading instruction the tutor provided to the student, including her selection of the Wilson program to assess and address the student’s specific needs and the progress the student made, the evidence in the hearing record supports a finding that the private reading services constituted specially designed instruction that met her unique needs”.

Application of the Dept of Educ., Appeal No. 22-081 (Aug. 26, 2022) Dispute: Whether the parents’ request for payment of tutoring services should be granted.

Conclusion: The SRO upheld the IHO, who found that the parents did not meet their burden to show that the tutoring services were appropriate.

Basis of the SRO’s Decision: “[T]he issue in this matter is whether the tutoring obtained by the parents constituted appropriate unilaterally obtained services for the student such that the cost is reimbursable to the parents”.

“Parents who are dissatisfied with their child’s education can unilaterally change their child’s placement … and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test.”

“As for the substantive standard for assessing the services that are unilaterally obtained by the parent, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim”.

“A private school placement must be proper under the act” which is to say that it must offer “an educational program which [meets] the student’s special education needs”. “A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement” and “[t]he private school need not employ certified special education teachers or have its own IEP for the student”. “Parents seeking reimbursement bear the burden of demonstrating that their private placement [is] appropriate, even if the IEP was inappropriate”.

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement”. “Parents need not show that the placement provides every special service necessary to maximize the student’s potential.” “When 712

determining whether the parents’ unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits”. “A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student”.

“The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement” “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”.

The SRO determined that “the parents’ request for tutoring must be assessed under this framework as well; namely, having found that the district failed to offer or provide appropriate services, the issue [was] whether the tutoring constituted appropriate unilaterally obtained services for the student such that the cost of the tutoring is reimbursable to the parents upon presentation of proof that the parents have paid for the services or, alternatively, payable directly by the district to the provider upon proof that the parents are legally obligated to pay but do not have adequate funds to do so”.

In the case here, the SRO pointed out that, “as found by the IHO there [was] insufficient evidence to show that the tutoring was appropriate to address the student’s special education needs and that the costs of same are reimbursable to the parent”.

In particular, the SRO found that “[t]he only information concerning the nature of the tutoring services in the hearing record is testimony from the student’s mother”. “The mother testified that she hired a district teacher who had previously worked with the student to provide the student with one hour of tutoring per week … She chose the tutor because she was a special education tutor who had previously worked with the student and she felt they had a good relationship with each other which she wanted to continue. However, the SRO pointed out that there was “no evidence in the hearing record concerning the content of the tutoring provided or whether the tutoring was appropriate to meet the student’s educational needs.” Accordingly, the SRO concluded that there was “no basis in the hearing record to support disturbing the IHO’s denial of the parent’s request for reimbursement of tutoring costs”.

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MISCELLANEOUS

Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) Issue: Reimbursement for assistive technology under Burlington/Carter.

Dispute: Should the parents be reimbursed for the purchase of the student’s assistive technology device.

Conclusion: The Court concluded that since the district had provided the student with a FAPE, there was no authority under Burlington/Carter for the district to be liable for reimbursement to the parent for the cost of the student’s assistive technology device.

Key Take Away: When a district has provided a student with a FAPE, a parent may not receive reimbursement under Burlington/Carter for related services, including for a student’s assistive technology device.

Reasoning: The student has been determined to be eligible for special education as a student with a traumatic brain injury. During the 2021-22 school year, the student turned 12 years old.

The district held a CSE meeting for the student on March 9, 2021 at which an IEP was developed.

Among other things, the IEP recommended that the student attend a district public school. On June 23, 2021, the parents notified the district that they intended to unilaterally place the student at a private school.

The parents filed a due process complaint notice on July 7, 2021 alleging that the student was denied a FAPE. Among other things, the parents alleged that the district did not provide the student with assistive technology. Regarding this, and after review, the IHO determined that the district provided the student a FAPE. However, and as an “exercise of discretion” the IHO ordered the district to reimburse the parents for the purchase of the student’s assistive technology device. The parents and district appealed to the Office of State Review where a State Review Officer (SRO) agreed with the IHO that the district had provided the student with a FAPE but and therefore reversed the IHO regarding her decision that the district should reimburse the parents for the cost of the student’s assistive technology device.

The parents commenced an action in federal court on August 15, 2022. For a number of reasons, the Court determined that the district offered the student a FAPE. Regarding the SRO’s determination that the district should not be required to reimburse the parents for their son’s assistive technology device, the Court agreed with the SRO. The Court pointed out that “[r]eimbursement for related services is analyzed together with the parents’ entitlement to tuition reimbursement”. In line with this, the Court concluded that since it had found that the district had provided the student with a FAPE, it would be inconsistent with Burlington/Carter to also find that the student had a right to reimbursement for his assistive technology device. The

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Court also referenced the fact that the student’s IEP, which was rejected by the parents, included an assistive technology device.

SPECULATION Neske v. Banks, 22 Civ. 6946 (AT), 2024 WL 1313160 (S.D.N.Y. Mar 26, 2024) Issue: Speculation Dispute: Was it speculative for the parents to assume that the related services provided for by the district’s IEP would not be able to be provided during the course of a regular school day program.

Conclusion: The Court concluded that the parents’ argument that the amount of related services recommended for the student could not be provided over the course of a regular school day was impermissible speculation.

Key Take Away: Unless it is an impossibility, a parent may not presume that the amount of related services recommended in an IEP as part of a regular school day program will not be provided during that regular school day program.

Reasoning: The student has been determined to be eligible for special education as a student with a traumatic brain injury. During the 2021-22 school year, the student turned 12 years old.

The district held a CSE meeting for the student on March 9, 2021 at which an IEP was developed.

Among other things, the IEP recommended that the student attend a district public school. On June 23, 2021, the parents notified the district that they intended to unilaterally place the student at a private school.

The parents filed a due process complaint notice on July 7, 2021 alleging that the student was denied a FAPE. Among other things, the parents alleged that because of the amount of related services recommended, the district “could not implement the IEP without an extended school day, which the IEP did not include”. Regarding this, and after review, the IHO determined that the district provided the student a FAPE. The parents appealed to the Office of State Review where a State Review Officer (SRO) agreed with the IHO and affirmed her decision. The SRO found the parents’ argument to be “impermissibly speculative”.

The parents commenced an action in federal court on August 15, 2022. For a number of reasons, the Court determined that the district offered the student a FAPE. Regarding the amount of related services to be provided over the course of the regular school day, the court agreed with 715

the SRO that the parents’ argument was speculative. The Court explained that the majority of the student’s related services were to be conducted on a “push-in” basis rather than on a “pullout” basis. Relevant here, the Court pointed out that the parents’ memorandum of law “conced[ed] that it was mathematically possible for [the district] to implement the IEP – without an extended school day – with most of the services delivered on such a push-in basis”. The Court continued that in such a circumstance the parents’ argument that there was not enough time in the regular school day to provide the student’s related services “amounts to speculation that the school would simply fail to adhere to the IEP’s mandates which is not a permissible basis to challenge an IEP”.

Issue: speculation

Polanco v. Banks, 2024 WL 2105530, No. 23-373-cv (2d Cir. May 10, 2024)

Dispute: Were the parent’s claims related to grouping and staff ability and training speculative.

Conclusion: speculative.

The parent’s claims related to grouping and staff ability and training were

Key Take Away: In claims regarding the adequacy of an IEP and a denial of a FAPE, both parties are limited to discussing the placement and services specified in the IEP and therefore “reasonably known to the parties at the time of the placement decision”. “Speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement”.

Reasoning: The student in this case is a minor and is eligible for special education as a student with multiple disabilities.

The parent requested an impartial hearing. Among other things, the parent’s due process complaint notice asserted a denial of a FAPE in that “the classroom intended for the student would not have implemented an appropriate functional grouping of students” and that “the assigned school nurse was not trained in G-tube feeding and the staff at the placement school could not conduct two-person transfers”. The IHO rejected both claims on May 22, 2021.

However, the IHO concluded, on other grounds, that the student was denied a FAPE. The parent appealed the decision to a State Review Officer (SRO). On July 30, 2021, the SRO reversed the IHO’s decision, holding that the parent had forfeited the relevant issue by not raising it on the due process complaint notice and otherwise determining that the district had provided the student with a FAPE. Regarding the other issues, among other things, the SRO determined first that the school “could provide an appropriate grouping for the student” and second that “the IEP provided for training” in G-tube feeding and two-person transfers. The parent sued in District Court, which “granted [the district’s] motion for summary judgement, upholding the SRO’s decision”.

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Among other things, the parent appeals the district court decision on the basis that the classroom for the intended student “would not have implemented an appropriate functional grouping of students” and that the “assigned school nurse was not trained in G-tube feeding and the staff at the placement school could not conduct two person transfers”.

The Appeals Court first pointed out that “generally, the sufficiency of a placement offered by [the district] is determined based on the IEP itself”. It further explained that “[t]hus, in determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision”. The Appeals Court concluded that “[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement”.

In light of the above, the Appeals Court found that both of the parent’s claims were “speculative”.

Regarding the parent’s claim “that the classroom for the intended student would not have implemented an appropriate functional grouping of students,” the Appeals Court said that “[i]nstead of demonstrating how the proposed class grouping could prospectively have denied [the student] a FAPE, [the parent] merely speculated that the placement would have improperly grouped the student had he attended the placement school”.

Regarding the second issue, that “the assigned school nurse was not trained in G-tube feeding and the staff at the placement school could not conduct two-person transfers”, the Appeals Court pointed out that both the District Court and the SRO concluded that “the IEP provided training in both of those functions”. As a consequence, the Appeals Court said that the parent’s claim that such training “would be insufficient” is “speculative”.

Zayas v. Banks, 22 Civ. 7112 (KPF), 2024 WL 216761 (S.D.N.Y. Jan. 19, 2024) Dispute: Was the parents’ claim that the student would be inappropriately grouped at the recommended public school speculative.

Conclusion: Upholding the SRO, the Court concluded that the parents’ claim that the student would be inappropriately grouped at the recommended public school was speculative.

Basis of the Court’s Decision: In this case, the student “has a number of significant neurophysical limitations, he cannot care for himself independently, and is fully dependent on others in all activities of daily living”. “The student communicates only through vocalization, facial expressions, body movements, and eye gazing”. He is “incapable of learning on a typical academic trajectory”. At the time of the proceeding the student was sixteen or seventeen years old.

The district held a CSE meeting in March 2021. At that meeting, the CSE developed the student’s IEP for the 2021-2022 school year. The IEP recommended that the student attend a particular district 75 public school, enroll in a 12-month program in a 6:1+1 special class, and receive extensive related services in occupational therapy, physical therapy, speech-language therapy, vision education services as well as full-time individual health paraprofessional services.

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In a letter dated June 23, 2021, the parents advised the district that they disagreed with the IEP’s recommendation to place the student in the District 75 school and of their intent to unilaterally enroll the student in a private school. The parent signed a contract with the private school on July 2, 2021.

The parents requested a due process hearing in October 2021 that the district had denied the student a FAPE and of their intent to enroll the student in a private school. Among other things, the parents asserted that the recommended school was not appropriate because it would not be able to place the student in a class where he was “grouped” with other student’s having similar needs.

The IHO found that the district did not provide the student with a FAPE, reasoning, among other things, that the student was not appropriately grouped with other students of similar needs. The appropriateness of the student’s private school program was not in dispute by the parties. The IHO further found that the equities supported the parents’ request for reimbursement.

The district appealed to the New York State Review Officer (SRO). Among other things, the SRO found that whether the student was appropriately grouped in the assigned school was “speculative”.

The parents appealed the SRO’s decision to federal court. In its decision, the Court first explained that under New York regulations, students in special education classes must be grouped with other students having similar individual needs. See 8 NYCRR 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3).

However, the Court also explained that “[i]n the Second Circuit, speculation that an assigned school will not adequately adhere to a [students] IEP is not an appropriate basis for unilateral placement – and, in turn, tuition reimbursement -- because the provision of a FAPE must be evaluated prospectively”; that is, “as of the time of the parent’s placement decision. See R.E. v.

New York City Dep’t of Educ., 694 F. 3d 167, 195 (2d Cir. 2012). The Court said that this was to be distinguished from situations where, for example, “parents may challenge an assigned school’s facial inability to satisfy a child’s IEP”, See M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015). 144 The Court pointed out that the parents’ challenge to the student’s placement here was “precisely the kind of speculative challenge the Second Circuit declined to entertain” in M.O. See J.C. v. N.Y.C. Dep't of Educ., 643 F. App'x 31, 33 (2d Cir. 2016) (summary order) (“[G]rouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O.”). Regarding this, the Court pointed to the SRO’s concision that the student “never attended the assigned public-school site; … therefore any claim that [the student] would have been inappropriately grouped is impermissibly speculative”. Regarding speculation, the Court joined the SRO and said that the IHO’s decision was based on “speculation that students 144 This would be when, for example, “an IEP recommending a seafood-free environment, for a child with a lifethreatening seafood allergy, could not be implemented at a proposed school that was not seafood free”. See D.C. ex rel. E.B. v. N.Y.C. Dep't of Educ., 950 F.Supp.2d 494, 513 (S.D.N.Y.2013). Or, “when an IEP recommends one-onone occupational therapy, outside of the classroom, at a school that provided only in-class occupational therapy in a group setting”. See B.R. v New York City Dep’t of Educ., 910 F.Supp.2d 670, 676–79 (S.D.N.Y. 2012).

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with autism might pose a danger to the student” and also “speculation regarding proposed differences in the academic and instructional programs both would require”.

The Court upheld the SRO’s decision to dismiss the claim because it was speculative.

Mason v. Carranza, 20-CV-4010 (PKC)(SJB), 2023 WL 6201407 (E.D.N.Y. Sept.

22, 2023) Dispute: Whether the student was appropriately grouped in the recommended special class.

Conclusion: The Court concluded that because of the parent and the student’s absence from the school the parent did not know how the student would be grouped in the special class placement.

In the alternative, the Court found that the student would have been appropriately grouped in the placement.

Basis of the Court’s Decision: The student “is diagnosed with, among other things, cerebral palsy, intractable epilepsy, cortical vision impairment, microcephaly, and asthma”. He was 10 years old at the end of the 2018-19 school year.

The parent asserts that the district did not recommend a classroom grouping of students with “similar individual needs” as well as similar academic levels and learning characteristics, levels of social development, levels of physical development and management needs. See 8 NYCRR 200.6(a)(3); 200.6(h)(2)-(5). In particular, the parent points to a district witness’s testimony that the students in the District 75 public school recommended for the student exhibited “a wide range of needs”.

The Court found the SRO’s position that the parent “waived her argument to glass grouping because she never visited the public-school placement, and thus could not know what the class grouping would be” persuasive. The SRO pointed out here that “the student did not attend the public school and the parent had not visited the public school since 2015”. Because of this, the Court concluded that “[a]ny evidence about how the student would have been grouped if he had attended the public school is necessarily and impermissibly retrospective”.

Even if this were not the case, the Court found that the CSE recommended an appropriate class grouping. In this regard, the Court cited to testimony that all of the students in the 12:1+4 classes and, in fact, in the entire District 75 school had a “wide range of needs”. The Court followed this up with the conclusion that “[i]t is evident [from the testimony] that the reason the students are grouped together in the specialized District 75 school is because they all have a wide range of needs…and thus the [parent’s] allegation that the CSE did not recommend an appropriate class grouping fails on the merits. 145

It is clear from the Court’s decision on the merits that the Court misunderstands the relevance of class grouping in the context of applicable State regulation. The purpose of this requirement is to ensure that students in a special 145

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Thomason v. New York City Dep’t of Educ., No. 21-cv-6713 (LJL), 2023 WL 1966207 (Feb. 13, 2023) Dispute: Was the argument that a district was hesitant to implement a student’s IEP at a proposed district school speculative such that the student was not required to attend that proposed placement.

Conclusion: The Court held that in circumstances where a district merely indicated a hesitancy to implementing a student’s IEP, it was improperly speculative to assume that the district would not actually do so.

Basis of the Court’s Decision: In circumstances where the proposed district school does not have the ability or capability to provide the services in a student’s IEP, the student is not required to accept that placement; however, and contrary to this, in circumstances where it is “mere speculation that the school district would not have adequately adhered to the IEP despite its ability to do so” does not require a student to accept a district placement. See M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir 2015).

In this case, the parents “argue that the district’s proposed school placement was inadequate because the school was incapable of implementing the IEP recommendation that [the student] receive 60-minute speech therapy sessions”. In this regard, the parents pointed to evidence that the proposed school’s speech classes were 30-minutes long and not 60 minutes. Based on this, “the [p]arents thus conclude[d] that the “recommended school will not, and could not, implement the [district’s] recommendation of 60-minute speech language therapy sessions”.

The Court indicated that this argument was speculative given that there was testimony that “the school was capable of accommodating 60-minute speech therapy sessions”. Therefore, the Court said that there was “no question that the recommended placement had the capacity to provide the recommended services”. It made no difference the Court said, that district staff also “expressed some hesitancy about the school’s willingness to do so”. With respect to this, the Court said that it was speculative to assume that because the district had indicated a “hesitancy” to modify its speech language program that the district “would not” modify its programming in light of the fact that it had the ability to do so. N.M. v. New York City Dep’t of Educ., 2016 WL 796857, at *8 (S.D.N.Y. Feb. 24, 2016). The Court concluded that this was the “kind of speculative argument” that it was “required to reject”. Id.

class placement are similar to each other for teaching and learning purposes and not to ensure that a special class has a “wide range of needs”.

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NOTICE OF INTENT TO REMOVE Thomason v. New York City Dept of Educ., 23-cv-8654 (LJL), 2025 WL 307223 (S.D.N.Y. Jan. 27, 2025) Issue: Unilateral placement – notice of intent to remove Dispute: Did the timing of the parent’s ten-day notice of intent to place the student in a private school and seek reimbursement provide the parent with a meaningful opportunity to investigate the appropriateness of the assigned public-school location.

Conclusion: The District Court decided that the timing of the parent’s ten-day notice of intent to place the student in a private school and seek reimbursement provided the parent with a meaningful opportunity to investigate the appropriateness of the assigned public-school location.

Key Take Away: Rather than working collaboratively with the district to determine an appropriate school setting, the parent’s timing of the required 10-day notice undermined the administrative process.

Reasoning: The student in this matter receives special education as a student with a Traumatic Briain Injury.

He has severe global impairments and delays. The student is in a wheelchair.

The district’s CSE met in February 2022 to develop the student’s IEP for the 2022-2023 school year. The resulting IEP recommended that the student be placed in an 8:1+1 class, receive related services, and a 1:1 transportation paraprofessional for health. On April 12, 2022, the district told the parent that the student would be assigned to a particular district school. The school was not wheelchair accessible. On May 16, 2022, the parent advised the district that the school could not accommodate the student because of her need for a wheelchair. The district did not respond to the parent. On June 15, 2022, the parent signed a reenrollment contract for the student to attend the private school. On June 17, 2022, the parent provided the district with a written notice “of her intent to reenroll the student in a private school and to seek public funding for that placement.” The district responded on June 28, 2022, proposing that the student attend a different public school that would be accessible to the student. Thereafter the parent requested additional information about the new placement. The district did not provide any. The district’s new 2022-2023 12-month school year began on July 1, 2022.

The parent filed a detailed due process complaint on July 6, 2022, stating that the student had been denied a FAPE for the 2022-2023 school year and requested tuition reimbursement. The parent said that that the district’s delays in responding to the parent’s concerns “deprived [the parent] of the opportunity to investigate and consider the second proposed school and constituted a denial of FAPE”.

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The impartial hearing officer (IHO) issued a decision on March 2, 2023. The IHO found that the district had denied the student a FAPE. The IHO also concluded that the student’s private placement was appropriate. The IHO further concluded that equitable considerations did not preclude or limit tuition reimbursement. The IHO pointed to the fact that the district had first recommended a school that was not wheelchair accessible. The IHO also pointed to the district’s failure to respond to the parent’s expressed concerns regarding the second proposed placement.

However, the IHO also concluded that the district should have had the opportunity to “cure” the issues within the 10-day notice period prior to the student enrolling in the private school.

However, the IHO said that because the proposed placement at the second public school was also inappropriate the district’s attempt to cure its initial inappropriate recommendation did not warrant the denial or reduction of tuition reimbursement.

The parent appealed. The State Review Office (SRO) rejected the parent’s argument that the timing of the June 28, 2022 school location letter deprived her of a meaningful opportunity to investigate the appropriateness of the assigned public school location because it came so close to the July 1, 2022 beginning of the 12-month school year. The SRO said that “the timing of the parent’s rejection of the initial placement in a letter dated June 15, 2022, the district’s attempt to resolve the parent’s concerns by assigning the student to a new school on June 28, 2022 and the parent’s filing of the detailed due process complaint on July 6 indicated that no procedural violation occurred”.

The parent brought the matter to the United States District Court for the Southern District of New York. The parent continued to argue “that the IEP was procedurally defective because the district’s failure to respond promptly to the parent’s concerns denied the parent the ability to meaningfully participate in the school selection process”. The parent pointed “to the fact that the [district] did not inform her of the ultimately proposed public school until June 28, 2022, which was mere days before the start of the school year”. The district argued that it sent the updated placement letter at that late date (June 28, 2022) only in response to the parent’s June 17, 2022, ten-day letter. The district further argued, as the SRO had concluded, that given the detail in the parent’s July 6, 2022 due process complaint it “does not appear that the assignment of the student to a school just prior to the start of the 2022-2023 school year denied the parent the opportunity to obtain information about the school”.

The District Court agreed with the SRO that the parent had the ability to obtain information about the second proposed school. The District Court said that the timing of the parent’s 10-day notice on June 17, 2022, “undermined the possibility of subsequent collaboration towards an appropriate public-school placement”. It stated that the parent did not on May 16, 2022, “give written notice that she was rejecting the placement or that she intended to enroll the student at a private school at public expense”. Rather, the District Court said, a month later – on June 15, 2022 – she enrolled the student in the private school and still without giving the district the tenday notice. The District Court pointed out that only after the parent signed the enrollment contract did she send the ten-day notice and that by this time it was too late for the district to 722

“cure” (correct) the issue and allow the parent time to investigate the proposed placement before the end of the school year.

The District Court decided that the parent failed to give the required ten-day notice, on a timely basis, which would have allowed the district to cure (correct) the parent’s concerns.

Landsman v. Banks, No. 23-CV-6404 (VEC), 2024 WL 3605970 (S.D.N.Y. July 31, 2024) Issue: notice of intent to remove Dispute: Whether the claimed 10-day written notice was provided to the district by the parent prior to the removal of the student from the public school.

Conclusion: The claimed 10-day written notice was not provided to the district by the parent prior to the removal of the student from the public school.

Key Take Away: A parent may not claim to have satisfied the requirement that it provide the district with 10 days written notice of the intent to remove the student from the public school, unless the parent actually does so.

Reasoning: This case concerns a student with a rare brain disease that impairs motor function and who is eligible to receive special education as a student with a traumatic brain injury.

In October 2022, the parent filed a due process complaint notice. The parent requested tuition reimbursement for the 2021-22 school year.

The IHO denied the parent’s request for tuition reimbursement because there was no evidence that the parent had given the district the required 10-day written notice before unilaterally placing the student at the private school and did not give any reason why that failure should be excused. 146 The parent then appealed the IHO’s decision to the SRO. The parent’s appeal papers included a copy of a claimed 10-day notice to the district. The parent asked that the SRO accept the letter as additional evidence. The SRO concluded that because the letter had been “available” at the time of the IHO hearing, but the parent “inexcusably failed to submit it”, it would not accept the letter as evidence. The SRO agreed with the IHO’s denial of tuition reimbursement for the 2021-22 school year because the parent did not provide the IHO with proof that she had

146 The IDEA, alternatively, sets forth that the notice of intent to remove may be satisfied if at the most recent IEP meeting that the parents attended prior to removal of the child from the public school the parents informed the CSE that they were rejecting the placement proposed by the public agency to provide FAPE to their child, their concerns, and their intent to enroll their child in a private school at public expense. See 34 CFR 300.148(d)(1)(i). From the reading of this case, it appears that this provision was not relevant in this instance.

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given the district the required 10-day written notice of unilateral placement before enrolling the student at the private school The parent appealed this decision to the United States District Court for the Southern District of New York. The District Court pointed out “that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent IEP meeting prior to their removal of the student from public school or by written notice ten business days before such removal”. See 34 CFR 300.148(d)(1). The District Court agreed with the SRO that the letter the parent wanted to enter into evidence was not required to be accepted by the SRO. The District Court said, even if the letter was real and the parent did send it to the school district on the date of the letter, that did not show that the parent provided the district with the required 10 business days’ notice of the parent’s intent to remove the student from the public school. The letter was dated February 2, 2022, the parent had “signed an enrollment contract with [the private school] on February 4, 2022” and had “enrolled [the student] at [the private school] on February 8.

The District Court stated that at best, the letter the parent wanted entered into evidence shows four business days’ notice of the required 10-day notice and that it therefore would have been proper to deny the claim for tuition reimbursement.

RELATED SERVICES Leonarda Bautista v. David C. Banks, 23-cv-11161, 2025 WL 861223 (Mar. 19, 2025) Issue: services reimbursement Dispute: Was the parent able to receive payment for claimed 1:1 nursing services and special transportation.

Conclusion: The District Court concluded that the parent was not able to receive payment for claimed 1:1 nursing services and special transportation.

Key Take Away: In order for a parent to receive payment for services associated with a private placement, the parent must provide evidence that he/she was responsible for payment of such services Reasoning: The student in this case receives special education services as a student with multiple disabilities.

In October 2022, the parent filed a due process complaint claiming that the district failed to provide a FAPE for the student for the 2022-2023 extended school year, that the parent’s private placement was appropriate and was supported by equitable considerations, and requesting direct funding for nursing and transportation costs.

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The district did not attend the impartial hearing. As a consequence, in May of 2023, the impartial hearing officer (IHO) issued a decision saying that the district conceded that it had not provided the student with a FAPE and that the parent’s placement was appropriate.

The IHO, however, did not order the district to pay for the cost of the student’s 1:1 nursing services or special transportation. The IHO, and the SRO on appeal, both concluded that there was not enough evidence to show that the student received nursing services and special transportation. At the impartial hearing, the parent’s counsel had, in answer to the IHO’s question about the amount due, agreed that the amount due was the “tuition-only” amount cited by the district. Further, the IHO and SRO concluded that the evidence relating to the student’s need for nursing services did not prove a need for nursing services as opposed to a need for a paraprofessional.

The parent began a court proceeding in the United States District Court for the Southern District of New York. The parent said that the district denied the student a FAPE when they were denied funding for 1:1 nursing services and special transportation. The parent blamed the lack of evidence of expenditures for 1:1 nursing services and special transportation as a result of a “mistake from an inexperienced attorney”. The district argued that the SRO’s review was detailed and that the parent did not provide sufficient evidence for funding for additional services. Both parties sought the District Court’s agreement with their positions.

About the 1:1 nursing services, after a review of the evidence, the District Court concluded “that there was no documentary evidence nor proof of any agreement” establishing that the parent was responsible for the cost of the 1:1 nursing services. The District Court pointed out that the parent did not submit at the impartial hearing a contract for nursing services nor indicated that such a contract existed. Finally, the District Court found that the SRO was correct in determining that the evidence did not show that the student needed the nursing services or that the student actually received such services.

About the special transportation services, the District Court decided that the IHO and SRO acted reasonably in denying funding. The District Court pointed out that the parent’s attorney “never mentioned” special transportation services during the impartial hearing. Agreeing with the IHO and the SRO, the District Court also said that it was reasonable for the IHO to rely on the parent’s attorney when that attorney had agreed at the impartial hearing that the amount at issue reflected only the cost of tuition.

The District Court upheld the SRO’s decision affirming the IHO’s decision.

Cindy Moonsammy v. Banks, 23 Viv. 10491 (PAE), 2025 WL 733254 (S.D.N.Y. Mar. 7, 2025) Issue: services reimbursement – related services Dispute: Whether there was sufficient facts in the record to support a finding for one-to-one nursing services.

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Conclusion: The District Court found that there was “no reliable record evidence” in support of the parents’ claim for reimbursement for payment of one-to one nursing services.

Key Take Away: A parent must provide sufficient evidence to receive reimbursement for related services provided; the absence of any evidence at all invites concerns of fraud or collusion.

Reasoning: After a long and tortured highway, the District Court advised the parties that the only dispute left was whether the parents “are entitled to additional reimbursement for individual nursing services, under the third prong of Burlington-Carter”. The District Court explained that this prong “requires the Court to determine the appropriate amount of reimbursement based on its consideration of the equities”.

An October 25, 2024, State Review Officer (SRO) decision given to the District Court after remand to the SRO found that there was “no reliable evidence that [the parents] had agreed to separately pay for one-to-one nursing services”. The parents argued that the SRO erred in this conclusion.

The district contends that the SRO’s conclusion should be awarded deference.

The District Court said that it had “considered the entire record de novo [(from scratch)] and independently balanced the equities”. It concluded that it was “in wholesale agreement with the SRO’s conclusion that [the parents’] claim to have incurred the cost of one-to-one nursing services lacks support in the record”.

The District Court pointed to evidence including that the enrollment agreement with the private school disclaimed that the school would provide any individual nursing services; that, in fact, the enrollment agreement did not include one-to-one nursing services among the related services “enumerated in the agreement”; testimony that the private school did not employ nurses capable of providing one-to-one services; that the private school was not able to identify any private nursing services that provided the student with one-to-one nursing services; the lack of any documentation showing or suggesting an agreement between the parents and an outside agency for the provision of such nursing services; no suggestion from the parents that they had entered into an enforceable oral agreement; and the lack of even the “name of the agency that supposedly provided the one-to-one nursing services”.

The District Court concluded that “at bottom [the parents] seek additional funding based on nothing more than their say so” and that this is not enough to “impose such a funding responsibility on the [district]”.

The parents claimed that certain statements in the student’s IEP which were taken from a report prepared by the private school “justifies reimbursement”. The District Court said that this did not “shed light on whether [the parents] agreed to pay a separate fee for individual nursing services on top of tuition due [the private school]” and less than information regarding the nature of such services, the “duration and frequency which they were provided[,] the identity of the provider[,] or the terms of payment”. As before, the District Court pointed out that neither the parent nor 726

staff of the private school “could or would identify the provider of the individual nursing services”.

The District Court concluded that the “assembled record thus does not come close to supporting an award of additional funding for individual nursing services”. In fact, the District Court said that the “barren quality of their showing … invites concern whether there was any fraud or collusion in generating or inflating the fees to be charged to the [district]”.

The District Court said that its assessment agreed with the SRO’s “well-reasoned decision”, which it said showed that the parents’ request was “shot through with factual holes”.

Finally, the District Court concluded that the evidence did not support overturning the SRO’s decision.

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New York

SPECIAL EDUCATION C A S E L AW D I G E S T A Publication of the New York Special Education Task Force

Vol.1 - October 2021