Zayas v. Banks

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROSA ZAYAS, as Parent and Natural Guardian of R.Z.; ROSA ZAYAS, individually; EDWIN ZAYAS, as Parent and Natural Guardian of R.Z.; and EDWIN ZAYAS, individually, 22 Civ. 7112 (KPF) Plaintiffs, -v.- OPINION AND ORDER DAVID C. BANKS, in his official capacity as Chancellor of New York City Department of Education, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants. KATHERINE POLK FAILLA, District Judge: Plaintiffs Rosa and Edwin Zayas (“Plaintiffs”), individually and as parents and natural guardians of their son, R.Z., bring this motion for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) and Local Rule 6.3. Plaintiffs ask this Court to reevaluate its January 19, 2024 Opinion and Order (Dkt. #39 (the “MSJ Order”)) denying Plaintiffs’ motion for summary judgment and granting the cross-motion of Defendants David C. Banks (in his official capacity as Chancellor of the New York City Department of Education) and the New York City Department of Education (together, “DOE” or “Defendants”). Contrary to the MSJ Order’s findings, Plaintiffs urge the Court to conclude that (i) DOE failed to offer R.Z. a free appropriate public education (“FAPE”) for the 2021-2022 school year, as mandated by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1485; (ii) Plaintiffs’ unilateral placement of R.Z. at the International Institute of the Brain (“iBRAIN”) for the 2021-2022 school year was appropriate; and (iii) equitable considerations warrant reimbursement of Plaintiffs for the total cost of R.Z.’s attendance at iBRAIN. For the reasons discussed herein, the Court denies Plaintiffs’ motion. BACKGROUND1

The Court assumes familiarity with the factual and procedural histories of this litigation and incorporates by reference the facts set forth in the MSJ Order. The Court summarizes below only the facts essential to the adjudication of the instant motion. A. Factual Background R.Z., the son of Plaintiffs Rosa and Edwin Zayas, suffers from cerebral palsy, seizure disorder, hydrocephalus, dystonia, and global developmental delay, in addition to being legally blind, non-ambulatory, nonverbal, and having a shunt and a gastronomy tube. (Pl. 56.1 ¶¶ 1, 3-4). Pursuant to

IDEA, DOE is required to provide R.Z. with a FAPE, including by developing an appropriate “individualized education program” (“IEP”) for him. 20 U.S.C. §§ 1412(a)(3)-(4); see also N.Y. COMP. CODES R. & REGS. tit. 8, § 200.1(y) (defining “IEP” as “a written statement … which includes the [programs and services] … to be provided [by the state] to meet the unique educational needs

1 The facts set forth in this Opinion are drawn from the parties’ submissions in connection with the parties’ cross-motions for summary judgment. The Court primarily sources facts from Plaintiffs’ Local Rule 56.1 Statement (“Pl. 56.1” (Dkt. #18)) and Defendants’ Local Rule 56.1 Statement (“Def. 56.1” (Dkt. #30)), as well as the Complaint (“Compl.” (Dkt. #1)). The Court refers to the decisions of the Impartial Hearing Officer (“IHO”) and the State Review Officer (“SRO”) in the underlying administrative proceedings as “IHO Decision” (Dkt. #1-1) and “SRO Decision” (Dkt. #1-2), respectively. of a student with a disability”); id. § 200.4(d)(2) (describing the components of an IEP). The instant dispute surrounds the IEP formulated for R.Z. for the 2021-2022 school year (the “2021-2022 IEP”), which, among other things,

called for R.Z.’s enrollment in a 12-month program in a 6:1:1 class at a District 75 (“D75”) school. (Pl. 56.1 ¶¶ 10-16). Consistent with the 2021-2022 IEP, for the 2021-2022 school year, DOE placed R.Z. in the Horan School, a D75 school wherein R.Z. could be assigned to a 6:1:1 classroom. (Def. 56.1 ¶ 7). Plaintiffs disagreed with the 2021-2022 IEP’s recommended placement of R.Z. at a D75 school, in part due to the findings of Dr. Isabel Rodriguez, who conducted an Independent Educational Evaluation of R.Z. in May and June 2021. (Def. 56.1 ¶ 12; Compl. ¶¶ 68, 76). According to Dr. Rodriguez, “D75

programs often include children with autism spectrum disorder diagnoses, a clinical presentation that requires different academic and supportive needs than those needed of a child [like R.Z.] with an acquired brain injury”; for this reason, a D75 program “cannot meet [R.Z.’s] needs.” (IHO Decision 5-7). Crediting Dr. Rodriguez’s assessment of the impropriety of R.Z.’s placement in a D75 school, Plaintiffs elected to unilaterally enroll R.Z. at iBRAIN for the 2021-2022 school year. (Def. 56.1 ¶ 10). On the basis that DOE had denied R.Z. a FAPE for the 2021-2022 school

year, Plaintiffs subsequently initiated state administrative proceedings seeking reimbursement for the cost of R.Z.’s iBRAIN tuition and related expenses. (Def. 56.1 ¶¶ 25-28). Following a due process hearing conducted in November and December 2021, Impartial Hearing Officer (“IHO”) Diane Ciccone issued a decision on February 9, 2022, concluding that DOE had failed to offer R.Z. a FAPE for the 2021-2022 school year and granting Plaintiffs’ request for reimbursement (the “IHO Decision”). (IHO Decision 15-16; Pl. 56.1 ¶¶ 37-42).

On appeal, State Review Officer (“SRO”) Justyn Bates reversed the decision of IHO Ciccone in a decision issued on April 20, 2022 (the “SRO Decision”). (Id. ¶¶ 43-45). B. Procedural Background Plaintiffs commenced the instant action, seeking this Court’s reversal of the SRO Decision, on August 19, 2022. (See generally Compl.). On February 2, 2023, the parties requested leave to file cross-motions for summary judgment in lieu of proceeding to discovery (Dkt. #16), which request the Court granted (Dkt. #17). “Because the allegations in the Complaint

concern[ed] an underlying administrative hearing,” the parties indicated that the issues in this action could be resolved on the basis of the certified administrative record alone. (Dkt. #16 at 1-2). On April 3, 2023, Plaintiffs filed their motion for summary judgment and accompanying Local Rule 56.1 statement of material facts. (Dkt. #18-20). On June 2, 2023, Defendants filed their cross-motion for summary judgment and opposition to Plaintiffs’ motion for summary judgment; Local Rule 56.1 statement of material facts; and responses to Plaintiffs’ Local Rule 56.1

statement of material facts. (Dkt. #29-32). On July 3, 2023, Plaintiffs filed their opposition to Defendants’ cross-motion for summary judgment, reply in further support of their motion for summary judgment, and responses to Defendants’ Local Rule 56.1 statement of material facts. (Dkt. #33-34). Finally, on August 7, 2023, Defendants filed their reply in further support of their cross-motion for summary judgment. (Dkt. #38).

On January 19, 2024, the Court issued the MSJ Order, denying Plaintiffs’ motion and granting Defendants’ motion, both in full. (See generally MSJ Order). Specifically, applying the Burlington/Carter test — which governs claims seeking tuition reimbursement under IDEA, see C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014) — the Court concluded that DOE’s placement of R.Z. at the Horan School did not violate IDEA. (See MSJ Order 14-31 (citing Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985); Florence Cnty. Sch. Dist. Four v. Carter By &

Through Carter, 510 U.S. 7 (1993))). Further, the Court found that because DOE’s proposed placement did not violate IDEA (the first prong of the Burlington/Carter test), it was not necessary for the Court to evaluate whether Plaintiffs’ private placement of R.Z. at iBRAIN was appropriate or whether equitable considerations favored Plaintiffs’ reimbursement (the second and third prongs, respectively). (Id. at 15). Accordingly, the Court affirmed the SRO Decision and denied Plaintiffs’ request for reimbursement of the costs of R.Z.’s private placement at iBRAIN. (Id. at 30-31).

On February 16, 2024, Plaintiffs filed the instant motion for reconsideration of the MSJ Order pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Local Rule 6.3. (Dkt. #41-42). Defendants filed an opposition to Plaintiffs’ motion on April 1, 2024 (Dkt. #45), and Plaintiffs filed a reply in further support of their motion on April 8, 2024 (Dkt. #47). DISCUSSION A. Applicable Law Federal Rules of Civil Procedure 59(e) and 60(b) and Local Civil Rule 6.3

govern motions for reconsideration, depending on the type of order at issue and specific relief sought. See Cadet v. All. Nursing Staffing of N.Y., Inc., No. 21 Civ. 3994 (KPF), 2023 WL 3872574, at *4 (S.D.N.Y. Jan. 6, 2023), reconsideration denied, 2023 WL 3872558 (S.D.N.Y. Apr. 12, 2023); Silverberg v. DryShips Inc., No. 17 Civ. 4547 (SJF), 2018 WL 10669653, at *2 (E.D.N.Y. Aug. 21, 2018); United States v. Real Prop. & Premises Located at 249-20 Cambria Ave., Little Neck, N.Y. 11362, 21 F. Supp. 3d 254, 259 (E.D.N.Y. 2014); see also Fed. R. Civ. P. 59(e) (motion to alter or amend judgment), 60(b) (motion for relief from

judgment or order); Local Civ. R. 6.3 (motion for reconsideration). All reconsideration motions are subject to a “strict” standard, Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), and will be granted “only when the movant identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice,’” Sec. & Exch. Comm’n v. Gottlieb, No. 98 Civ. 2636 (LAP), 2021 WL 5450360, at *2 (S.D.N.Y. Nov. 22, 2021) (quoting Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)).

Importantly, a reconsideration motion is not a vehicle (i) to “introduce additional facts not in the record on the original motion”; (ii) to “advance[] new arguments or issues that could have been raised on the original motion”; or (iii) to “relitigate an issue already decided.” Silverberg, 2018 WL 10669653, at *2 (internal quotation marks omitted) (collecting cases); accord Analytical

Survs., Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012). Instead, reconsideration may be warranted where the movant “can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Schrader, 70 F.3d at 257; see also Lichtenberg v. Besicorp Grp. Inc., 28 F. App’x 73, 75 (2d Cir. 2002) (summary order). Ultimately, “the decision to grant or deny a motion for reconsideration rests within the sound discretion of the district court.” Vincent v. Money Store,

No. 03 Civ. 2876 (JGK), 2011 WL 5977812, at *1 (S.D.N.Y. Nov. 29, 2011) (internal quotation marks omitted). B. Analysis In the preliminary statement of their memorandum of law in support of their motion for reconsideration, Plaintiffs identify two issues with the Court’s MSJ Order that they believe constitute grounds for reconsideration. (See Dkt. #42 at 1-3). In particular, they argue that: • “[T]he Court seems to have overlooked that [IDEA] … gives courts broad authority to grant ‘appropriate’ relief, including reimbursement for the cost of private special education … [and] the Court has discretion to consider equitable factors relating to the reasonableness of the Plaintiffs’ actions when fashioning relief.” (Id. at 2).

• “The Court erred in granting the unfounded SRO Decision more deference than it rightfully deserved. Considering equities is a duty that Congress has tasked this Court to perform without unwarranted deference to the decisions of the SRO.” (Id. at 2-3).

Both assertions are plainly incorrect. As to the first — whether the Court overlooked its “discretion to consider equitable factors” when fashioning relief under IDEA — the Court’s conclusion that R.Z. was not denied a FAPE for the 2021-2022 school year negated the Court’s need to fashion relief for Plaintiffs altogether, and thus any concurrent need to “consider equitable factors” in doing so. As to the second, the amount of deference offered to the SRO Decision, the Court finds no error in its decision to accord the SRO Decision substantial deference. In explaining this decision, the Court discussed in the MSJ Order (i) the cursory nature of the IHO Decision; (ii) the relative length and thoroughness of the SRO Decision; (iii) the extensive citations to primary source material throughout the SRO Decision; and (iv) the Court’s own review of such primary source material and assessment of the accuracy of the SRO’s characterizations thereof. (MSJ Order 15-17, 26-28, 30; see id. at 17 n.3). What is more, beyond asserting that the Court erred in its decision concerning

deference to the SRO Decision, Plaintiffs offer no law or fact demonstrating what such error was; Plaintiffs do not identify any new or previously overlooked matter that impacts (let alone merits alteration of) the Court’s original analysis. Far more troubling than the vague and conclusory nature of Plaintiffs’ proffered grounds for reconsideration is the fact that Plaintiffs’ submissions in support of their motion for reconsideration are copied, word-for-word, almost in full, from their submissions in connection with the parties’ cross-motions for summary judgment. Exhibit 1 to this Opinion provides a comparison of Plaintiffs’ memorandum of law in support of their motion for reconsideration (Dkt. #42), filed February 16, 2024, with excerpts of Plaintiffs’ memorandum of law in support of their motion for summary judgment (Dkt. #20), filed April 3,

2023, and memorandum of law in opposition to Defendants’ cross-motion for summary judgment and reply in further support of their motion for summary judgment (Dkt. #33), filed July 3, 2023. Exhibit 2 provides a comparison of Plaintiffs’ reply memorandum of law in further support of their motion for reconsideration (Dkt. #47), filed April 8, 2024, with excerpts of Plaintiffs’ memorandum of law in support of their motion for reconsideration (Dkt. #42), filed February 16, 2024.2 As the Exhibits demonstrate, with the exception of the preliminary statements and a handful of paragraphs in Plaintiffs’ reply

memorandum, Plaintiffs’ submissions on the instant motion are entirely repurposed from other briefs. (See generally Ex. 1-2). The two exhibits bring into sharp relief the futility of Plaintiffs’ motion for reconsideration. Because Plaintiffs simply regurgitate the arguments made in support of their motion for summary judgment in their submissions on the instant motion, this Court’s consideration of such arguments is by definition “relitigat[ion] [of] issue[s] already decided.” Silverberg, 2018 WL 10669653, at *2 (internal quotation marks omitted); see also Am. Home Assurance Co. v.

Crowley Ambassador, No. 01 Civ. 3605 (PKL), 2003 WL 21313972, at *4

2 The Court notes that the software used to produce the comparisons in Exhibits 1 and 2 is imperfect and, at times, identifies certain text in a document as unique when, in reality, it is copied from the file against which that document is being compared (i.e., the software operates in Plaintiffs’ favor in that it is over-inclusive as to its identification of unique text). (S.D.N.Y. June 6, 2003) (“A motion for reconsideration is not an opportunity to press more strenuously the same arguments made in the original motion.”); Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005) (“It is settled law in this District that a motion for reconsideration is n[ot] an occasion for repeating old arguments|.|”). Not only is this recapitulation an inappropriate use of the reconsideration vehicle, but it is also a waste of both Defendants’ and this Court’s time. For the foregoing reasons, the Court denies Plaintiffs’ motion for reconsideration. The Court warns Plaintiffs and their counsel that, while the Court will refrain from issuing sanctions at this time, Plaintiffs’ submissions in connection with the instant motion get close to the line of sanctionable conduct under Federal Rule of Civil Procedure 11(b). CONCLUSION Plaintiffs’ motion for reconsideration is hereby DENIED. The Clerk of Court is directed to terminate the pending motion at docket entry 41. SO ORDERED. Dated: April 17, 2024 Kathe fal. Flo New York, New York KATHERINE POLK FAILLA United States District Judge

3 The Court appreciates Defendants’ thoughtful engagement with Plaintiffs’ submissions notwithstanding the fact that Defendants, too, had already meaningfully addressed the arguments set forth therein in the course of summary judgment briefing. 10

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PRELIMINARY STATEMENT Plaintiffs EDWIN and ROSA #AYAS, as Parents and Natural Guardians of □□□□□ and Individually. submit this Memorandum: of Law PRELIMINARY STATEMENT Plaintiffs EDWIN and ROSA ZAYAS, as Parents and Natural Guardians of R.Z., and i i i a Individually, submit this Memorandum of Law under Fed. R. Civ. P. 59(e), Rule 60(b), and Local { □□ Rule 6.3.! A motion filed under Fed. R. Civ. P. 59(c) must be filed no later than 28 days after the forthe 2024-34 oel—rea # unit | □□□□□ af entry of the judgment. A motion filed under Local Civil Rule 6.3 for the Southern and Eastern ‘ Districts of New York permits a party to move for Reconsideration or Reargument within 14 days the entry of the Court's determination of the original motion or in the case of a court order = : ee resulting in a judgment, within 14 days after the entry of the judgment. — : : On January 19, 2024, the Court issued an Opinion and Order denying the Plaintiffs’ Motion = = = = for Summary Judgment, granting the Defendant's Cross-Motion for Summary Judgment, and : . dismissing this case. Case 22-cv-07112 Dkt. No. 39. The Clerk of the Court was directed to □□ terminate all pending motions and deadlines and to close the case. i Under Fed. R. Civ. P. 59(e) and Local Rule 6.3, the Plaintiffs must show that the Court ‘ i i { overlooked law or factual matters" that had been previously pul before it. Plaintiffs For_' t t | | Hl contend that reconsideration is necessary. given the facts not considered by this Court in rendering | : i? ad i □ its decision. Specifically, the Plaintiffs seck reconsideration of this Court's Order entered on : January 19, 2024. [ECF No. 39], which denied the Plaintiffs’ Motion for Summary Judgment that = : : □ would have required the New York City Department of Education ("DOE") to directly fund R.Z.'s ee nae □ ge tuition for the 2021-2022 extended school year ("ESY") at the International Institute for the Brain □ ("iBRAIN"), along with special transportation, nursing, and a 1:1 travel paraprofessional. ia gael □

1 Baker obo KO vy. Lewis-Ashley, No. 22-CV-4971 (LI'S), 2023 WL 2072469, at *1 (S.D.NLY. Feb. 16, 2023), see 1 L202 ext LYeae | ball the | □ Triestman v. Fed Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), see also Tracy v. Freshwater, 623 F.3d 90, in 101 Qd Cir. 2010). See also, Curtis . Greenberg, No. 20-CV-824 (PKC) (LB), 2022 WL 173108, at #2 E.DN.Y. i 4 3 ae Jan. 19, 2022), aff'd. No. 22-252-CV, 2023 WL 6324324 (2d Cir. Sept. 29, 2023). 1 (LTS) 7 SONY Feb 1672 Text in both

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In adopting the Defendants’ narrative of this matter, the Court seems to have overlooked that I the i tive i 1 tot it § 1415 (2) (2) (C) (it) provides in pertinent part, "In any action brought under this paragraph, the $1 (1) (2) (C) Gin) provi {part "In any action J □□ □ ! Court... (iii) basing tts decision on the preponderance of the evidence. shall grant such relief as ii) hasing its deci I I 20 ider □□□□□ the Court is appropriate." The Supreme Court has recognized that § 1415 (1) (2) (C) : I ste + 2 d that § 14 □□ (iii) gives courts broad authority to grant "appropriate" relief, including reimbursement for the cost il 2ourt ‘appre : lund burs of private special education when a school district fails to provide a free appropriate public il | is dist Oo] □ education ("FAPE"). Forest Grove Sch. Dist. v. T.A., 5537 U8, 230, 239 (2009), In some cases, edu on ("PAPE") Feren Grove Soh, Dist vy 7A, 557 U8. 230, 239 (2009), In some cases, reimbursement is appropriate even where DOE offered the student a FAPE? bi ment is appropriate ev Hered APE." The Court has discretion to consider equitable factors relating to the reasonableness of the Lo cer equitable | vt □□□ Plaintiffs’ actions when fashioning relief? And while courts may not substitute their notions of uilTs' wi reli \ ‘sound educational pohey' for those of the school authorities they review, a court accords no L ior 3 y' for th 1 1 oy □□ □□□□ 20 3 particular deference to a State Review Officer (“SRO”) on pure questions of law, Arlington Cent, ar det ih Stat jew Offic ‘ stions of law Arlington Cent, Seh. Dist. v LP. 421 F. Supp. 2d 692, 696 (8.D.N.Y. 2006); Walezak Fla. Union Free Sch Soh, Dist vb. 2d 697, 696 ($.D.N { Val Fila, Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir, 1998), see also Carmel Cent. Seh. Dist. ve VP. ex-rel. GP. 373 Pst Fad (2d Cir. 1998) ae ent. Soh Dist □□ □□ □ □□ F. Supp. 2d 402, 408 (8.D.N.Y. 2005), affd sub nom. Carmel Cent. Sch, Dist. v. 192 F. App'x i 2 2, 408 20S | r Sek, Dist □□ 192} 62 (2d Cir. 2006) ("[Ajn SRO's determination of a pure question of law is not subject to é 20) | dete ation 1 of | bject deference"), Reid ex-rel. Reid «D.C. 401 F.3d 316, 321 (D.C, Cir. 2005) (no deference is to be - Ath) F.3d 5] 21 (D.C. Cir, | 1 □□□ given to a hearing officer's conclusion where that conclusion “raises an issue of statutory to a hearing officer 1 i construction, a pure question of law that courts review de novo"), i i rts ri \ vo" Given the foregoing, the Court erred in granting the unfounded SRO Decision more Give oregé a 2 t | ‘ ed SRO □□□□□□□□ deference than it rightfully deserved. Considering equities is a duty that Congress has tasked this i ris i ‘ 1 mngress hast 1.4 TAM AM Comal Cent Sel, Dist, 752 Fad 145 (2d Cir, 2014) Ads. vt Sah Dist Mew Fork City Dep't of Educ, 646 F Supp 2d 346, 360 (SDNY. 2009), ste also Gagliande Arlington A it I 2 3 ee ang □□□□□□□□□ Cent Soh, Dist, 489 F.3d 105,112 (2d Cir 2007), citing Florence Coty Sch. Dist Four y Carter By d& Throngh Sent Soh Dist fice Cun, Sek, Dist. Four □ □□ Carter, 314 U.S. 7, 161994). 2 Text in both

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Court te ‘conn without unwarranted deference tothe decisions of the SRO, Plaintiffs are entitled Court to perform without unwarranted deference to the decisions of the SRO. Plaintiffs are entitled □□□ a sis he 7021-202 □ io Summary Judement. as the record shows that ) emed a PAPE for the 20% N22 □□□□ to Summary Judgment. as the record shows that DOE denied R.Z. a FAPE for the 2021-2022 ESY, ‘ ‘ and the Parent's unilateral placement BROAN was approy and the Parent's unilateral placement at BRAIN was appropriate. TA'TEMENT OF FACTS STATEMENT OF FACT STATEMENT OF FACTS gee aa = RE . = Plaimiffs ROSA and EDWIN ZAYAS are the Parents and Natural Guardians of R.Z., a Plaintiffs ROSA and EDWIN ZAYAS are the Parents and Natural Guardians of R.Z., a ss —= sixteen-year-old young man dunmg the 2021—2022 SY diagnosed with cerebral palsy. sixteen-year-old young man during the 2021-2022 SY diagnosed with cerebral palsy, ‘ : se hydrocephalus, dystonia, and a seizure disorder, [R 36], R.Z. also exhibits global developmental hydrocephalus, dystonia, and a seizure disorder. [R 36], R-#. also exhibits global developmental 7 delays, is legally blind. non-verbal. non-ambulatory. and kedhas a shunt and gastronomy tube is legally blind, non-verbal, non-ambulatory. and has a shunt and gastronomy tube ("G- “re aN soe Le □ □□□ ° : □ ("G- tube"). [R 8]. RZ. depends on others for all activities of daily living. [R 36]. At the tube"). [R 8]. depends on others for all activities of daily living. [R 36]. At the underlving . . . . oy underlying hearings, Dy. Isabella Rodriguez, who performed RZ.'s most recent hearings. Dr. Isabella Rodriguez, who performed B.Z.'s most recent neuropsychological exam. a □□ neuropsychological exam, testified that because of these severe limitations, the Student cannot testified that because of these severe limitations, the Student cannot care for himself independently we □□ ‘ oe □□ care for himself independently or learn on a typical academic trajectory [R 263] and lacks social or learn on a typical academic trajectory [R263] and lacks social communication skills because of sige sen □ communi¢ation skills duetebecause of his profoundly low intellectual capacity. [R 266], his profoundly low intellectual capacity. [RB 266] eqysisccen 43 sess . This is further exhibited by the resulis of the neuropsychological independent education This is further exhibited by the results of the neuropsychological independent education : evaluation (IEE") that was conducted on January 18, 2021, in which R.#, tested at a full-scale 10 evaluation ("IEE") that was conducted on January 18, 20721, m which R.Z. tested at a full-scale IQ 5 a fs fe aie □□ of 40 using the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V). On March 10, of 40 using the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V). On March 10, ‘ i ‘ 2021, the Commuttee on Special Education @C'CSE held its annual □□□□□□□ meeting, in 2021, the Committee on Special Education ("CSE") held its annual IEP’ meeting, in which the which the Plaintiffs participated, to revisit R.Z.'s [EP for the 2021-2022 SY. Because of the March 10, 2021, wo me . rents Plaintiffs participated, to revisit R.#.'s IEP for the 2021-2622 □□□□□□□□□□ □ ()22 IEP Meeting, the CSE reconmmended R.7Z. for a 6:1:1 special class in a District 73 ("D75") school, — = oe ec □ SY. Because of the March 10,2021. IEP Meeting, the CSE recommended for a 6:1:1 special with individual Occupational Therapy ("OT") four times a week in sixty-minute sessions, : sant rene □□□ teait class in a District 75 ("D75") school, with individual Occupational Therapy ("O/T") four times a individual Physical Therapy ("PT") five times a week in sixty-minute sessions, individual Speech- pera i perience sis isin EES □□□□□ week in sixty-minute sessions: individual Physical Therapy ("PT") five times a week in sixty- Language Therapy ("SLT") five times a week in sixty-minute sessions: individual Vision □ co . _ swcn eta qe □ □□□ minute sessions; individual Speech- Language Therapy ("SL7") five times a week im □□□□□□ minute sessions; individual Vision Education Pregram ndividualized Education Progran Text in both

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Education Services three times a week in sixty-minute sessions; and group Parent Counseling and Education Services three times a week in sixty-minute sessions; and group Parent Counseling and ia eee □ eis □□□ . Training once a month for sixty minutes. The CSE also recommended a 1:1 paraprofessional. a 1:1 Training once a month for sixty minutes. The CSE also recommended a 1:1 paraprofessional, a 1:1 wines ' : nurse during transportation to and from school, individual assistive technology services once a nurse during transportation to and from school, individual assistive technology services once a . . Aa ngs . □□ week for sixty-minute sessions, and #etteed—daily use of assistive technology. □□□ switches week for sixtv-minute sessions, and daily use of assistive technology, ee, switches with voice i Z : with voice output. [R 9]. output. [KR 9]. 2 = □□□ In prior--written notices dated March 16, 2021, and May 27, 2021. DOE informed the In prier-written notices dated March 16, 2021, and May 27, 2021. DOE informed the Parents pia pid: □ □ P Parents of the CSE's determination for the above-listed services at a D73 school and the name of of the CSE's determination for the above-listed services at a D7S school and the name of the ; □□ Pecitnaae eens : the proposed D75 school that R.Z. would attend. [R 10]. The Parents later sent DOE a Ten-Day proposed school that R.%. would attend. [R 10]. The Parents later sent DOE a Ten-Day notice x occas . ead | = ae notice on June 23, 2021, indicating they disagreed with the proposed placement for the 2021— on June 23, 2021, indicating they disagreed with the proposed placement for the 2021-2022 SY, ane vee en . □□ . = rat res PSaoesd pinreine 2022 SY, and notified DOE of their intent to unilaterally place R.Z. at iBRAIN for the 2021- and notified DOE of their intent to unilaterally place RZ. at IBRAIN for the 2021-2022 SY. [R mov 20122 □□□ □□□ 10]. 10). : □ : Boe □ Toward the end of May, into the early days of June 2021, a second neuropsychological IEE Toward the end of May, into the early days of June 2021, a second neuropsychological IEE as 3 ; □□ - Sennen hn me eee ee (bilingual) exam was held over a series of days. [R 10], The newropsychologist found that the (bilingual) exam was held over a series of days. [R 10). The neuropsychologist found that R.Z.’'s ys ps wa sf) 8 4 □□□□ □□□□□□ □□□□ perpetrate tent eet trie} e-R.Z.'s full cognitive potential was difficult to full cognitive potential was difficult to quantify because of the limits of the neuropsychological a £08 ene = □□ quantify-_because of the limits of the neuropsychological testing. [Id]. She also found that R.Z testing. [Id.]. She also found that R.Z. demonstrated some verbal comprehension and understood i ' gi □□ demonstrated some verbal comprehension and eomprebendedunderstood simple cause-and-effect simple cause-and-effect associations. [R 10-11]. The same neuropsychologist would later testify fie ijesia ; □□ □ 2 = associations. □□ 10—11]. +hisThe same neuropsychologist would later testify at □□□□□□ at R.Z.'s administrative hearing that she had concerns for R.Z.'s safety ina D75 special class with vos 3 : sp ‘ sete anne : ns Be Bae administrative hearing that she had concerns for R.Z.'s safety in a D75 special class with students students on the autism spectrum, [BR 46-47]. Specifically, Dr, Rodriguez would testify that: 3 aa. □□ aca □□□ ay □□□ on the autism spectrum, [R46—17]. Specifically, Dr, Rodrigues would testify that: given [R.Z.'s] visual impairment, lack of mobility in aclassroom with students a a □□□ who are ambulatory, on the autism spectrum who would have stereotypical ensne Seer ee ee ne ee ee oe □□□□□□□□□□□□□□□□□□□□□□□□□□ maladaptive behaviors which could place the STUDENT in danger. The doctor also opined that the students on the autism spectrum require a different type of □□□□□□□□□□□□□□□□□□□□□□ instruction from students who have brain injuries (Ir 130). She opined the 9 iy x 4s Se og □ STUDENT needed to continue the highly individualized instruction that he was given [R.Z.'s] visual impairment, lack of mobility in a classroom with □□□□□□□□ receiving at the PRIVATE SCHOOL. (Tr. 149). The Placement in the D75 who are ambulatory, on the autism spectrum who would have stereotypical environment would not be appropriate for this student. Significant safety issues | maladaptive behaviors which could place the STUDENT in danger. The doctor also involving other students. and the need for a highly intensive instruction which is opined that the students on the autism spectrum require. a different type of instruction from students who have brain injuries (Tr. 150). She opined the STUDENT needed to continue the highly individualized instruction that he was receiving at the PRIVATE SCHOOL. (Tr. 149). The Placement m the D75 4 environment would not be appropry sili imide □□□□ involving other students, and the n Text in both

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different than his classmates make the placement in a D75 6:1:1 with children on the autism spectrum inappropriate." different than his classmates make the placement in a D745 6:1:1 with children on the autism spectrum inappropriate." [R 46—47]. 46-47]. Also, in June 2021, after DOE sent the notices for the proposed placement and program for Also, in Jume 2021, after DOE sent the notices for the proposed placement and program for the 2021—2022 SY, an assistive technology evaluation was conducted at the tequest of the CSE. the 2021-2022 SY. an assistive technology evaluation was conducted at the request of the CSE. [R 10]. R.#. received a total score of 41 out of 160, placing him in the 26th percentile, [[d.]. The [R 10). RZ. received a total score of 41 out of 160, placing him in the 26th percentile, [id,]. The evaluators indicated that assistive technology would augment the student's communication abilities evaluators indicated that assistive technology would augment the student's communication abilities and help him use language to meet his daily needs. [Id.], and help him use language to meet his daily needs, [Id.], On August 12.2021, the DOE emailed an IEP Meeting Notice for an JEP meeting On August 12,2021, the DOE emailed an IEP Meeting Notice for an IEP meeting scheduled scheduled on August 19, 2021, for R.Z.'s 2021—2022 SY educational program, giving the on August 19, 2021, for R.Z.'s 2021-2022 SY educational program, giving the Plaintif1-Parents Plaintiff--Parents less than seven deposdavs’ notice of the scheduled meeting. [R □□□□□□□□ R less than seven days' notice of the scheduled meeting. [R 181-182; R 186]. DOE also failed to 186]. DOE also failed to notify R.Z.'s private school of the meeting, as they had previously done notify private school of the meeting, as they had previously done. [R 239-240]. The Parent- [R 239240]. The Parent- Plaintiffs would not be present at the IEP and would Plaintiffs would not be present at the IEP meeting and would later learn that the Meeting Notice later learn that 1) Ht ihe Meeting Notice é i □□□□□ was filtered DOE emailed to the Plaintiffs was filtered into their spam inbox. which was later confirmed by the into Hr + spam inbox, which was later confirmed by the testimony of R_Z.'s father. testimony of father, [R 295-296], On the day of the IEP meeting, when the Parents did not [R 295— 296]. On the day of the IEP meeting, when the Parents did not appear, the CSE made appear, the CSE made one attempt to reach the Parents by phone. Unable to reach the Parents on one pl atte reach the ant-Pare nable the first attempt to call them, the CSE moved forward with the IEP meeting, [R 187], te 1 1 on the first Tn contravention of the Individuals with Disabilities Education Act ("IDEA"). the CSE did attempt them. the CSE moved forward with the IEP meeting. [R 187]. not attempt to reschedule the [EP meeting or phone the Parents a second time., even though R.Z.'s In oon ention of the Individuals with I bilities due: 1 i CSE did not Parents have a history of participating in JEP meetings—Plaintiffs participated in the previous [EP attempt to reschedule the meeting: E of phone the Parents meeting in March 2021, (R 296| i nthe R.Z.'s Parents have Following the administrative due process proceedings, on February 9, 2022, Impartial a history of participating in TEP meetings-aad-+eeent4y—T'laintifls participated in he Hearing Officer ("THO") Diane Ciccone issued her Findings of Fact and Decision ("FOFD"), previous IEP meeting in March 2021. [R 296]. holding that: (1) DOE denied R.Z. a FAPE for the 2021-2022 SY: (2) iBRAIN was an appropriate “SerFollowing the administrative due process proceedings, on February 9, 2022, Impartial Z Hearing Officer ("IHO") Diane Ciccone issued her Findings of Fact and Decision □□□□□□□□□

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— —— —— a wees weighed in favor of the Parents, but reduced the award because the costs that the Parent? □□□□□□ contracted for were “excessive.” [R 48]. The Decision was appealed to the Office of State Review under SRO unilateral placement for R.Z.: and (3) the equitable considerations weighed in favor of the Parents. Appeal No. 22—025, but reduced the award because the costs thal the Parents contracted for were "excessive." [R 48]. On April 20, 2022, State-Revies Oth “SRO Justyn P. Bates issued his Decision in The Decision was appealed to the Office of State Review under SRO Appeal No. 22-025. SRO Appeal No. 22—025 and reversed the Decision of the THO, finding that DOE provided R.7 ‘On April 20, 2022, SRO Justyn P. Bates issued his Decision in SRO Appeal No, 22-025 and with a FAPE for the 2021-2022 SY. In finding that DOE provided a FAPE, the SRO declined to reversed the Decision of the LHQ, finding that DOE provided B.#. with a PAPE for the 2021-2022 address Prongs II and III regarding the appropriateness of the unilateral placement and the SY. In finding that DOE provided a FAPE, the SRO declined to address Prongs IL and [1] regarding equitable considerations. [R 33], the appropriateness of the unilateral placement and the equitable considerations. [R 33}. | LEGAL FRAMEWORK LEGAL FRAMEWORK Congress enacted IDEA with the goals of (1) promoting the education of children with Congress enacted IDEA with the goals of (1) promoting the education of children with disabilities by ensuring that they receive an education that adequately addresses their needs, and disabilities by ensuring that they receive an education that adequately addresses their needs, and iprotecting the rights of students Lilis sand their parents. The IDEA mandates (2) protecting the rights of students with disabilities and their parents. The IDEA mandates that that state and local governments provide all ¢isabled-children with □ a FAPE, which state and local governments provide all children with disabilities with a FAPE, which must be must be “reasonably calculated to enable the child to receive educational benefits.” See 24 “reasonably calculated to enable the child to receive educational benefits.” See 20 U.S.C. 2 § 1400[d][1][4]-[B] and 8a. of Rdue. of Hendrick Hudsan Cent. Sch, Dist, Westchester Cath. § AJ[LAJ-[B] and Bal of Ede. of Hendrick Hudson Cent, Sch, Dist, Westchester Caty, v, Rowley, 458 U.8. 176, 206-07 (1982). Frank G. vu Bal of Educ. of Hyde Park, 459 F.3d 356. 363 Rowley. : 15 5 ; OF \ : (1982). Frank (2d Cir. 2006), quoting Walezak, 142 F.3d at 122. G. 1. Ba. of Ede. of Hyde Park, 480 36,3 For the school district to provide a Student with a PAPE. it must (a) comply with the (2d Cir, 2006), quoting Walezak bt } □ procedural requirements outlined in the [IDEA and (b) develop an LEP reasonably calculated to □ For the school district to provide a Student with a FAPE. it must (a) comply with the enable the Student to receive educational benefits, See Board of Educ. of Hendrick Hudson Central procedural requirements outlined in the IDEA and (bj develop an JEP reasonably calculated to Schoal Dist, Westchester County, 458 U.S, at 206417 and Cerra □ Pawling Cent, Sch, Dist, 427 enable the Student to receive educational benefits. See Board of Educ. of Henalrick Hudson Central F.3d 186, 192 (2d Cir. 2005). A student's IEP is reviewed each year and includes a detailed School Dist,, Westchester Conny, 2 : □□ description of the Student's current educational performance, annual and short-term educational goals, and specific instructional techniques and related services that will allow the Student to Cir, 2005). 4 student's TEP is reviewed each year and imeludes a detailed descnption of the 6 Student's current educational performance, annual and short-term educational goals. □□□ □□□□□□□□ instructional techniques and related servic Text in both

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achieve those goals. SY f Pork (ity □□□ □□□ ( l a In New York City, a t student's [EPs □ □□ E, achieve those goals. SLY. □ New York City Dep't of Edue., 210 F. Supp. 3d 956 (S.D.N.Y. 2016). In provided by the DOE, which is a team of parents, educators, and specialists responsible for New York City. a CSE formulates a student's IEP, provided by the DOE, which is ateam of parents. examining the Student's current performance and needs and determining an education program that educators, and specialists responsible for examining the Student's current performance and needs will provide that Student with a FAPE. Edue. Law and determining an education program that will provide that Student with a FAPE. NOY. Educ. Law § 402(1)(b)(1) (Mckinney), RE, v, New Fork City Dep't of Edue., 9+ + □ □ □ § (McKinney): RE. □ Mew York City Dep't of Edue., 694 F.3d 167, 175 (2d Cir. 175 (2d Cir, 2012) 2012). The IDEA specifies that a disabled student's [EP determinations may not rely on the Student's The IDEA specifies that a disabled student's TEP determinations may not rely on the Student's disability classification; but must be disability classification but must be based on the Student's specific and unique educational needs. based on the Student's specific and unique educational needs. +t □□□□□ 20 See 20 U.S.C. § 1412 (a3), FO. vw Mew York City Dep't of Edue., 976 F. Supp, 2d 499, $25 (jG), New Fork City Dep't of Edue., 9F i 176 2013). New York State regulations mandate that students with highly intensive ail 499, 325 (8.D.N.¥. 2013) New York State regulations manclate that students with highly management needs must not be placed in a classroom with no more than six students. N,¥. Comp. intensive management needs must not be placed ina classroom with □□ 18ix students. Codes R. & Regs. tit, 8, § 200.6(hW4 Miia), While school districts need not list a specific school N.¥. Comp, Codes R. & Regs. tit, 8, § 200.6(h)(4\ iia). While school districts need not list a location in a IEP, a district's school assignment for a student must conform to IEP specific school location ina student's a district's school assignment for a student must conform recommendations. % New York City Dep't of Rdue., 793 Fad 236, 244 (2d Cir 2015). In to TEP recommendations. M@.0. v. New York City Dep't of Edue., SI4+adSs □ □□□□ Fd evaluating the Student for the creation of his IEP. a CSE must assess the Student in all areas related 3G. 2015). In evaluating the Student for the creation of his IEP, a CSE must assess the to the Student's suspected disability. such as health. vision, hearing, social and emotional status, Student in all areas related to the Student's suspected disability, such as health, vision, hearing, general intelligence. academic performance. communicative status, and motor abilities. N.Y. social and emotional status, general intelligence academic performance, communicative Comp. Codes R. & Regs, tit, 8, § 200 4(bWoi(vii} See also, 34 CPR, § 300, 304(6 44). status, and motor abilities. NY. Comp. Codes RB. & Regs, tit. #8_8 2 When parents are dissatisfied with the District's IEP determinations and believe the DOE denied their child a FAPE, the IDEA allows them to unilaterally place their child in a private school ; Hee EE et and seek tuition reimbursement from their local school district. 8, 210 F. Supp. 3d 356, citing When parents are dissatisfied with the District's [EP determinations and believe the DOE 793 F.3d at 239 (per curiam), The standard generally used to determine whether parents are dented their child a FAPE, the IDEA allows them to unilaterally place their child in a private school entitled to reimbursement from the district is known as the Burlington’Carter test. The two prongs and seek tuition reimbursement from their local school district, =4 □ □ it i OES} i l 4 é f I ul 239 (per □□□□□□□□ The standard generally used to determine wh teetdisinel is known as the Burlington Text in both

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of the BurlingtonCarter test that must be proven for the administrative officer or Court to order reimbursement are: (1) the educational program offered by the school district did not offer the of the test that must be proven for the administrative officer or Court to order Student a FAPE ("Prong F “), (2) the private school alternative selected by the parents 1s reimbursement are: (1) the educational program offered by the school district did not offer the appropriate to meet the Student's needs ("Prong Il and (3) a balancing of the equitable “ ; - : . siderath 2 faware ret esa 5] > Dar 5 " a we Pi, “ence □ af Bs Student a FAPE ("Prong 1"); (2) the private school alternative selected by the parents is appropriate considerations favors reimbursement to the parents ("Prong HI"). See Florence i es □□ i i] | Under NV Edie. [ay loKinney)} □ to meet the Student's needs ("Prong I"): and (3) a balancing of the equitable considerations favors eee reimbursement to the parents (“Prong II"). See Florence County School Dist. Fawr, 310 U.S. 7. = i! ee a □□□□ 3 ‘ 1 , i ft niert nitted Saw § 44040] ees Under N.Y, Edue, Law § 4404(1)(c} (McKinney), In New York, the school district has the initial □ burden of proving its IEP is adequate. 210 F. Supp. 3d 556, citing #2, 694 F3d at 184-85 = = = Leta eae □ (footnote omitted), Edue. Law § 4404(1\(c)), An TEP that cannot be implemented can never be adequate. ? □□□ Afier an initial Impartial Hearing on the matter, either party may appeal the Decision of the ; THO to the SRO, either party is not satisfied with the decision of the SRO, that party may take ache ‘ sig scat Spee After an initial Impartial Heating on the matter, either party may appeal the Decision of the action in state or federal Court for further review. &¥., 210 F. Supp. 3d 556 citing. R.E., 694 F.3d . . . THO to the SRO, If either party is not satisfied with the Bee 2c: of the SRO, that party at 175 (citing 20 § 1415(i)(2A)). A state or federal court then decides whether the school pany □□ □□□□ ari ‘ may take action state or federal Court for further review. S.¥., 24 □ □□□□□□ district's proposed TEP for the student 1s reasonably calculated to allow the Student to receive xg ; citing, RE, 6944S 4G Jat 1 citing □ □□ educational benefits and whether the parents’ choice of private school placement was appropriate. i ‘ mp sa a VI slate or federal court then decides whether the school district's fa. The for determining whether the unilateral placement was appropriate 1s identical to the enc esi its proposed IEP for the Std | is reasonably calculated to allow the Student to receive criteria for the appropriateness of the school district's IEP: whether it is reasonably calculated to SESS 5 oe ‘ ma zener saa see yee 4 - educational benefits and whether the parents’ choice of private school placement was appropriate enable the student to receive educational benefits. See Frank G., 439 F.3d at 364. fa. The criteria for determining whether the unilateral placement was appropriate is identical to the criteria for the appropriateness of the school district's IEP: whether it is reasonably calculated to enable the Ste 1 i to receive educational benefits. See Frarik G., □ 1-4

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ARGUMENT ARGUMENT I, DOE FAILED TO OFFER R.#. A FAPE FOR THE 2021-2022 ESY L DOE OFFER RZ. A FAPE FOR THE 2021-2022 ESY A. DOE Failed to Offer RZ. a FAPE Because ft Did Not Place RZ. in an Appropriate A DOE Did-Noth Offer RZ. a FAPE Because ft Did Not Place RZ. in an Class Grouping 4pprepriate Class Grouping

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The New York State regulations implementing the [DEA mandate that if a student's IEP | The New York State regulations implementing the IDEA mandate that if a student's TEP requires them to be placed in a special education class, "the size and composition of'a class shall requires them to be placed in a special education class, "the size and composition of a class shall be based on the similarity of the individual needs of the students according to (i) levels of academic | be based on the similarity of the individual needs of the students according to (i) levels of academic or educational achievement and learning charactertstics: (11) levels of social development: (11) or educational achievement and learning characteristics: (11) levels of social development: (111) levels of physical development: and (iv) the management needs of the students in the classroom. levels of physical development; and (iv) the management needs of the students in the classroom, N.Y. Comp. Codes R. & Regs. tit. 8, § 200,6(h)(2i)-(iv). N.Y. Comp. Codes R. & Regs. tit. 8, § 200,6(h)(2)(i}-(iv). [EP for the 2021-2022 school year requires him to be placed in a 6:1:1 elassroom—a R.#.'s [EP for the 2021-2022 school year requires him to be placed in a □□□□ classroom—a class having a maximum of six students, with one special education teacher and one group class having a maximum of six students, with one special education teacher and one group paraprofessional, For the 2021-2022 ESY, DOE offered R.Z. a placement in one such classroom paraprofessional, For the 2021-2022 ESY, DOE offered R.Z, a placement in one such classroom al the D73 Horan School ("Horan School"). [R537], At the time of DOE's offer. the Plaintiffs had at the D75 Horan School ("Horan School"). [R537]. At the time of DOE's offer, the Plaintiffs had received a report by Dr, Isabel Rodriguez, an independent neuropsychologist who had examined received a report by Dr. Isabel Rodriguez, an independent neuropsychologist who had examined R.Z,, that clearly stated that "a 6:1:1 District 73 classroom placement” such as the one proposed R.Z,, that clearly stated that “a 6:1:] District 75 classroom placement" such as the one proposed by DOE atthe Horan School “cannot provide the high degree of individualized attention including | by DOE at the Horan School "cannot provide the high degree of individualized attention including two-person transfer, nursing care, intense rehabilitation, and technology-facilitated one-to-one two-person transfer, nursing care, intense rehabilitation, and technology-facilitated one-to-one instruction that [R.Z.] requires in order to make functional gains." [R803].° The report also stated instruction that [R.Z.] requires in order to make functional gains,” [R803]Ps—Red that "D75 programs often include children with autism spectrum disorder diagnoses, a clinical | t { The report also stated that "D75 programs often include presentation that requires different academic and supportive needs than those needed of a child children with autism spectrum disorder diagnoses, a clinical presentation that requires different acquired brain injury.” [R803], Dr Rodriguez recommended that “[R.4,| should remain in academic and supportive needs than those needed ofa child with an acquired brain injury.” [R803]. his current 6:1:1 special educational setting at iBrain for the remainder of his education," [R803], | Dr. Rodriguez recommended that. "[R.Z.] should remain in his current 6:1:1 special educational Accordingly, the Plaintiffs rejected DOE's proposed school location and re-enrolled R.7. at 1 Lg □ i ts □□□□□ setting at 1Brain for the remainder of his education.” [R803]. Accordingly. the Plamtiffs iBRAIN, : see ; yg rejected DOE's proposed school location and re-enrolled R.#. at iBRAIN.

* Dr, entire evaluation can be found at RTO7-RB0O- Siac hte canta ea ea acne MH i evalua ft be

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SRO Bates incorrectly found that the Plaintiffs' rejection of DOE's offer was the type of | SRO Bates incorrectly found that the Plaintiffs' rejection of DOE's offer was the type of "speculative" challenge that the Second Circuit prohibited in J4.0., 793 F.3d 236. In AO., the “speculative” challenge that the Second Circuit prohibited in AO, peeee □□□ □□ □□ Second Circuit held that parents can prospectively challenge the proposed school location if the bette 793 F.3d 236 ee In the Second Circuit held that parents can prospectively prospective vhallenge is nol “speculative “AdO)., 793 F.3d at 244. In the context of improper challenge the proposed school location if the prospective challenge 18 □□ □□□□□□□□□□□□□□ MEO grouping claims, it is impermissibly speculative for a parent to claim denial of a FAPE by 793 F.3d at 244, In the context of improper grouping claims, it is impermissibly speculative for a speculating that the proposed school, which theoretically could place the student in a classroom parent to claim denial of'a FAPE by speculating that the proposed school, which theoretically could with the appropriate grouping, still would not place ithe student in the grouping required by the place the student in a classroom with the appropriate grouping, still would not place the student in student's IEP. But that is not the case here." the grouping required by the student's LEP. But that is not the case here. The Plaintiffs have never argued the Horan School could not provide R.7.'s TEP-required The Plaintiffs have never argued the Horan School could not provide R.Z.'s □□□□□□□□□□□□ 6:1:1 class placement. Instead, the Plaintiffs assert (and have asserted throughout) that due to R.Z.'s 6:1:1 class placement. Instead, the Plaintiffs assert (and have asserted throughout) that because particular disabilities and needs, DOE 6;1:1 classrooms are inappropriate and unsafe for R.Z, and RAs particular disabilities and needs, DOE 6:1:1 classrooms are inappropriate and would not allow him to progress academically. Far from being “speculative,” the Plaintiffs’ unsafe for R.Z. and would not allow him to progress academically. Far from being "speculative." concerns were factually grounded im the report of Dr. Rodriguez, an independent clinical the Plaintiffs' concerns were factually grounded in the report of Dr. Rodriguez. an independent psychologist and expert in assessing children with brain injuries and on the autism spectrum. clinical psychologist and expert in assessine children with brain injuries and on the autism Rather than arguing DOE simply would not provide an appropriate class grouping when they spectrum. Rather than arguing DOE simply would not provide an appropriate class grouping when could, the Plaintiffs argue DOE could not provide appropriate class groupings based on facts and they could, the Plaintiffs argue DOE could not provide appropriate class groupings based on evidence regarding the typical 6:1:1 class offered at the Horan School, facts and evidence regarding the typical 6:1:1 class offered at the Horan School. In the underlying administrative hearing, Dr. Rodriguez testified about the appropriateness of placing R.Z. in a 6:1:1 class in a traditional DOE school. It is important to note that Dr. se □ ‘In the underlying administrative hearing, Dr. Rodriguez testified about the appropriateness of placing RZ, ina 6:1: 1 class ima traditional DOE school, I Iportant to note that Dr. * The cases cited by SRO Bates have similar fact patterns. See Cy New Fork City Dep't of Educ, 643 F. App'x al (2c) Cir 2016) (the child was not denied a FAPE because the parent alleged that the proposec| school location did not contain the appropriate classroom grouping): un Mew York City Dep't of Edue., No. TSa7V-3187 (RA), 2016 WL ——$ $$ S107039 Sept 19, 2016) (tt was impermissibly speculatrve to allege that the school would not place the The cases cited by SRO Bates have similar fact patiens. See Cw New Tonk Cry Dep't of Edue., 643 □□ App'x 31 student in the appropriate grouping when the school could do se}; LC, New For Cin Dep'taf Ede. No. 15 CIV. (2d Cir. 2016) (the child was not denied a FAPE because the parent alleged that the proposed school location did not 4082 (PAC), 2016 WL 4690411 (S$ DN.Y, Sept. 6, 2016) (speculative to allege that the proposed school would not contain —the —appropriate classroom —grouping), —G., «New Fork City Dep'taf Bae, No, □□ □□□□□□□ (RA), be able to implement the student's IEP). = seed - ee WL FUSS (STN Sept, 19, 2086) (it was impermissibly speculative 10) &

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Rodriguez has over 15 years of experience evaluating children with brain injuries and autistic obit □□□ ttniid ail □□□□□□□□□□□□□□□□□□□□□□ Eee lated is Rodricier has over 15 years of children. [R259]. Based on her personal evaluation of R.Z. and her expansive knowledge of the experience evaluating children with brain injuries and autistic children. [R259]. Based on her children placed in traditional 6:1:1 DOE classrooms, Dr. Rodriguez testified that such a classroom i wal evaluation of RZ, and her expansive knowledge of the children placed □□ □□□□□□□□□□□ 6:1:1 would not be appropriate for R.#. because R.Z.'s "academic learning [and] cognitive profile is DOE classrooms, Dr. Rodriguez testified that such a classroom would not be appropriate for □□□ vastly different from that ofthe children whom I've observed in 6:1: 18." [R272]. because R.Z.'s “academic learning [and] cognitive profile is vastly different from that of the Aside from such a classroom being educationally inappropriate for R.Z., it also posed a children whom I've observed in 6:1:1s." [R272]. safety hazard. De, Rodriguez testified: idee wide from such a classroom being educationally inappropriate for R.Z., it also posed have for [R_#.'s| physical safety within that setting, given that he has asafety hazard. Dr. Rodriguez testified: very little gross motor control. | think there could be potential dangers within a traditional 6:1 class in a D745 [school], because children who have autism, and | ‘Lhave concerns for [R.%.'s] physical safety within that setting, given that he has particularly those who are severely autistic. tend to have stereotyped movements. very little gross motor control. I think there could be potential dangers within a They oftentimes have maladaptive or disruptive behaviors in the classroom. And traditional 6:1 class in a DTS [school], because children who have autism, and there's a safety issue there because [R_Z.] doesn't have the sort of safety awareness particularly those who are severely autistic, tend to have stereotyped movements, or the torso control to move him himself, you know, even if he's in his wheelchair They oftentimes have maladaptive or disruptive behaviors in the classroom. And and tries to move a bit from side to side, it's not controlled, and it is not—you know, there's a safety issue there because [R.#.] doesn't have the sort of safety awareness he wouldn't have the spatial or the sort of processing speed to be able to get himself or the torso control to move him himself, you know, even if he's in his wheelchair out ofa situation if he was in some physical risk." and tries to move a bit from side to side, it's not controlled, and it is not—you know, [R272] he wouldn't have the spatial or the sort of processing speed to be able to get himself out of a situation if he was in some physical risk.” The SRO's Unfounded Decision Deserves No Deference from this Court [R272]. SRO Bates claimed that Dr Rodriguez's testimony was “rife with generalizations and unsupported hypotheticals ... and stereotypes of students with different disability classifications..." SRO Bates claimed that Dr. Redriguez's testimony was “rife with generalizations and [R32-R33]. In doing so, SRO Bates ignored the confirmatory testimony of Michelle Lefaivre, the unsupported hypotheticals and stereotypes of students with different disability Horan School assistant principal, who also testified at the underlying administrative hearing, Ms. classificationse:..." [R32-R33]. In doing so, SRO Bates ignored the confirmatory testimony of Lefaivre testified that "the majority of students in our G:1:1 program are students on the autism Michelle Lefaivre, the Horan School assistant principal, who also testified at the underlying [R375]. Most students in these classes are also ambulatory. [R377]. SRO Bates further administrative hearing. Ms. Lefaivre testified that “the majority of students in our □□□□□ program ignored the guidance of the United Federation of Teachers, the union representing the teachers are students on the autism spectrum-— [R375]. Most students m these classes are also employed at DOE schools, which describes the students in a6:1:1 class as: “Student's behavior is ambulatory. [R377]. SRO Bates elsefuriher ignored the guidance of the United Federation of characterized as aggressive, self-abusive or extremely withdrawn and with severe difficulties in Teachers, the union representing the teachers employed at DOE schools, which describes the 11 students in a 6:1:1 class as: "Student's behavior ts charact ed as agar fea

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the acquisition and generalization of language and social skill development."” These students the acquisition and generalization of language and social skill development." These students require "a specific behavior management program.” Ja. “usually” require "a specific behavior management program.” Jd, It is important to note that Dr Rodriguez is independent, and her opinion carries much it is important to note that Dr. Rodriguez is éadependenr, and her opinion carries much weight with the Plaintiffs. Any psychologist or administrator employed by the DOE will be viewed weight with the Plaintiffs. Any psychologist or administrator employed by the DOE will be viewed skeptically by a parent whose child the DOE has failed countless times before. Indeed, any skeptically by a parent whose child the DOE has failed countless times before. { any reasonable parent who received a report by an independenr psychologist stating that the proposed 2 parent who received a report by an independent psychologist stating that the proposed DOE location would not only fail to educate their child but alse fail to keep their child safe, would DOE location would not only fail to educate their child but also fail to keep their child safe. would reject the proposed school and keep their child at their then-current school location—where he was reject the proposed school and keep thei child at their then-current school location—where he was safe and thriving educationally and socially. safe and thriving educationally and socially. SRO Bates simply concluded Dr. Rodriguez was wrong, with no legitimate basis for this SRO Bates simply concluded Dr. Rodriguez was wrong, with no legitimate basis for this conclusion, Although courts often defer to administrative officers’ decisions, “the deference owed conclusion, to an SRO's decision depends on the quality af that apinion.” REL, 694 F.3d at 189, (emphasis Although courts often defer to administrative officers' decisions. "the deference owed to an added). Courts may consider “whether the decision being reviewed is well-reasoned and whether SRO's decision depends on the quality of that opinion.” □□□□□ □□□ it was based on substantially greater familiarity with the evidence and the witnesses than the F.3d 189 ip—dtheece (emphasis added). Courts may consider “whether the decision reviewing court." Jel. quoting M.A.» New Fork Crt: Dep't of Edue., G85 F.3d 217, 244 (2d Cir. being reviewed is well-reasoned and whether it was based on substantially greater □□□□□□□□□□□ with 2012). Courts have held that an inadequately reasoned decision fails to carefully consider the evidence and the witnesses than the reviewing court." /¢., quoting M.A. «New Fork City Dep't significant evidence. Scott ex-rel. CS. 1 New Fork City Dep't of Educ., 6 F. Supp. 3d 424, 440-41] of Hdue.. O85 F.3d 217, 244 -42d Cir. 2012). Courts have held that an inadequately reasoned 2014). decision fails to carefully consider significant evidence, Scott ex—rel, CS, 4. New fork City Dep't SRO Bates arbitrarily and capriciously discounted Dr, Rodriguez's testimony and effectively of Educ.. 6 F. Supp. 3d 424, 440-41 (8.D.N.Y. 2014). substituted his own opinion for an expert in the field. Thus, the SRO's conclusion that DOE's SRO Bates I i discounted Dr, Rodriguez's testimony and effectively proposed grouping did not deny R.Z. a FAPE was baseless, should be afforded mo deference, and, substituted his own opinion for an expert vw field. Thus. the 8R:0's conclusion that DOE's proposed grouping did not deny R.Z. a FAPE was pet seless, □□□□□□ a

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in fact, should be overturned by this Court v2 that Defendants did net provide RZ. with in fact, should be overturned by this Court finding that Defendants did not provide with a a FAPE for the 2021-2022 school year. FAPE for the 2021-2022 school year. RUZ. Was Denied a FAPE Because Plaintiffs Mere Denied the Opportunity to Meaningfully Participate in the August 2021 Meeting Was Denied a FAPE Because Plaintiffs Were Denied the Opportunity to Meaningfully Participate in the August 2021 CSE* Meeting For the school district to provide a student with a PAPE, it must (a) comply with the For the school district to provide a student with a FAPE, it must (a) comply with the procedural requirements outlined in the [DE.A and (b) develop an IEP tatis-reasonably calculated procedural requirements outlined in the [DEA and (b) develop an IEP reasonably calculated to to enable the student to receive educational benefits, See SL J of Edue. of Hendrick Hudson enable the student to receive educational benefits, See Board of Rduc, of Hendrick Hudson Central Sele Dist. Westchester ‘ , 458 U8. 206-07 an Seheal Dist, Westehester County, 458 U.S, at 206-07 and Cerra, 427 F.3d at 192, Cerra, 4 i i 1 Part of complying with the procedural requirements outlined in the [DEA is allowing parents ful. Debts | (dentine catttemrattn □□ to participate in them child's IEP meeting. The public agency "responsible for providing education Part of complying with the procedural requirements outlined in the IDEA is allowing parents to children with disabilities" (34 C.F.R. § 300.33) is required to "take steps to ensure that one or to participate in their child's IEP meeting. The public agency “responsible for providing education both of the parents of a child with a disability are present at each IEP meeting or are afforded an to children with disabilities" (34 C.F.R. § 300.33) is required to "take steps to ensure that one or to participate,” including providing ample notice and “scheduling the meeting al a both of the parents of'a child with a disability are present at each IEP meeting or are afforded an mutually agreed on time and place." 34 C_F.R. § 300.322 (a). Doug C. v Hawail Dep't of Educ. opportunity to participate+," including providing ample notice and "scheduling the meeting at a 720 F.3d 1038, 1044 (9th Cir. 2013). mutually agreed on time and place.” 34 C\F.R. § 300.322 (a). Dewg C. uv □□□□□□ Dep't of □□□□□ As the Ninth Circuit has noted, "Procedural violations that interfere with parental 720 F.3d 1038, 1044 (9th Cir. 2013). participation in the formulation process undermine the very essence of the IDEA. An IEP that As the Ninth Circuit has noted, “Procedural violations that interfere with parental addresses the child's unique needs cannot be developed if those people who are most familiar with participation in the IEP formulation process undermine the very essence of the IDEA. An IEP that the child's needs are not involved or fully informed.” Amanda J. ex-rel, Annette J. Clark Cary, addresses the child's unique needs cannot be developed if those people who are most familiar with 267 F.3d 877, 892 (9th Cir, 2001), the child's needs are not involved or fully informed." Amanda J. □ rel. Annetie J. v. Clark Cnty. ‘To afford parents a meaningtul opportunity to take part m creating their child's IEP, a school Seh. Dist. 267 F.3d 877, 892 (9th Cir. 2001), district must try to schedule the [EP meeting at a mutually agreed-upon time and place. 34 C_E.R. To afford parents a meaningful opportunity to take part in creating their child's IEP, □ □□□□□□ § Comp. Codes R. & Reps. tit. 8. § 200.5(d). A school district may conduct a district must try to schedule the LEP meeting at a mutually agreed-upon time and □□□□□ sr ® Committee on Special Education CER. Text in both

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CSE meeting without a parent present only if "the school is unable to convince the parents that CSE meeting without a parent present only if “the school is unable to convince the parents that they should attend. Here, the school must have a detailed record of its attempts, and the results of they should attend. zn ‘seers. the school must have a detailed record of ils attempts. and the those attempts, to arrange a mutually agreed on time and place." N.Y. Comp. Codes R. & Regs. results of those attempts. to arrange a mutually agreed on time and place." N_Y. Comp. Codes R. tit. 8, § & Regs. tit. 8. § 200.5(¢ (3). DOE's feeble attempt to obtain the Plaintiffs’ participation in the August 2021 CSE fell far DOE's feeble attempt to obtain the Plaintiffs’ participation in the August 2021 CSE short of what was legally required, DOE sent one email to the Plaintiffs less than seven days before fell far short of what was legally required, DOE sent ene email to the Plaintiffs less than seven days the date and time DOE. unilaterally set for the meeting. [R181-R186], DOE never followed up before the date and time DOE unilaterally set for the meeting. [R181-R186]. DOE never followed when the Plaintiffs failed to respond because the email had gone to their junk folder. [R295-R296]. up when the Plaintiffs failed to respond because the email had gone to their junk folder. [R295- There was no attempt to hold the meeting at the requisite "mutually agreed-upon time and place." R296]. There was no attempt to hold the meeting at the requisite "mutually agreed-upon time and The DOE then made one phone call to the Plaintifl’s on the date of the meeting, and when no one place.” The DOE then made ene phone call to the Plaintills on the date of the meeting, and when answered the phone, proceeded to hold the meeting. [R187]. Even if the Plamtifls had answered noone answered the phone, proceeded to hold the meeting. [R187], Even if the Plamtiffs had the phone call, such notice would not have satisfied the notice requirements of the IDEA. N.Y, answered the phone call. such notice would not have satisfied the notice requirements of the IDEA. Comp. Codes R. & Regs. tit. 8 § 200.(c}(1) (notice must be provided in writing and more than N.Y. Comp. Codes R. & Regs. tit, 8, § 200. 3(c)(1) (notice must be provided in writing and more five days before the meeting). than five days before the meeting). Along with the clearly insufficient notice, it was also a pure violation of IDEA for the district lon the clearly msuffictent notice, it was also a pure violation of IDEA for the to hold the meeting in the absence of the Plaintiffs, without the Plaintiffs affirmatively refusing to district to hold the meeting in the absence of the Plaintiffs. without the Plaintiffs affirmatively participate. If the parent affirmatively opes not to participate, the district must obtain the parent's refusing to participate. If the parent affirmarively oprs net te participate, the district must obtain consent to proceed, As federal regulations state, a CSE meeting may be conducted without a parent the parent's consent to proceed. As federal regulations state, a CSE meeting may be conducted only if “the public agency is unable to convince the parents that they should attend.” 34 C_.F.R. without a parent endy if "the publie agency is unable to convince the parents that they should § 300.322 (d) (emphasis added). Here, the Plaintiffs never said they did not wish to attend the attend.” 34 CER. meeting, and it cannot be said the district could not convince them. Instead, the Plaintiffs missed § 300.322 (d) (emphasis added). Here, the Plaintiffs never said they did not wish to attend the one email and one phone call on the day of the meeting, and then lost the opportunity to participate | meeting, and it cannot be said the district could not convince them. Instead, ihe Plaintiffs missed in the formation of R.#.'s IEP. one email and one phone call on the day of the meeting. and then lost the opportunity to participate in the formation of R.Z.'s ; 14

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It cannot be disputed that DOE did not provide the requisite notice of the August 2021 CSE It cannot be disputed that DOE did not provide the requisite notice of the August 2021 CSE meeting to the Plaintiffs. : | ling in their obligations under the IDEA to ensure meeting to the Plaintilfs, thereby failing in their obligations under the IDEA to ensure that the that the Plaintiffs could participate in the meeting, Yet SRO Bates refused to "review whether the Plaintiffs could participate in the meeting. Yet SRO Bates refused to “review whether the district district took sufficient steps to ensure the parents attendance at the CSE meeting" □□□□□ □□□□ took steps to ensure the parents attendance at the CSE meeting" [R22, 1.8] because he because he concluded that any alleged process violation could not rise to the denial of a FAPE, It that any alleged process violation could not tise to the denial of a PAPE. It is unclear is unclear where SRO Bates finds support for the contention that procedural violations, such as the where SRO Bates finds support for the contention that procedural violations, such as the one here, one here, cannot rise toa denial of FAPE, especially after the Supreme Court in Row/ey found that cannot rise to a denial of FAPE, especially after the Supreme Court in Rowley found that for the for the school district to provide a student with a FAPE, one thing it must do is comply with the school district to provide a student with a FAPE, one thing it must do is comply with the procedural procedural requirements set forth in the IDEA. Board of Educ. of Hendrick Hudson Central requirements set forth in the IDEA. Board of Educ. of Hendrick Hudson Central School Dist. School Dist, Westchester County, 458 U8. at 206-07. ¢ (er i ). The ill-reasoned Westchester County, 438 U.S. at 206-07 (emphasis added), The ill-reasoned and counterfactual and counterfactual conclusion by SRO Bates, that procedural violations cannot rise to a denial of conclusion by SRO Bates, that procedural violations cannot rise to a denial of FAPE, should enjoy FAPE, should enjoy no deference from this Court. no deference from this Court, It is impossible for SRO Bates to know what would have happened at the August 2021 CSE itis impossible for SRO Bates to know what would have happened at the August 2021 CSE meeting had the Plaintiffs been given the proper opportunity to attend. SRO Bates venienth meeting had the Plaintiffs been given the proper opportunity to attend. SRO Bates conveniently ignores _ that shad the Plaintifts participated in the meeting, they could have presented ignores the fact that had the Plamtif!s participated in the meeting, they could have presented to the to the CSE the report by Dr. Rodriguez. the independent neuropsychologist who evaluated □□□ CSE the report by Dr. Rodriguez, the independent neuropsychologist who evaluated R.#. after the afier the March 2021 CSE meeting: but whose report was completed before the August 2021 CSE March 2021 CSE meeting but whose report was completed before the August 2021 CSE meeting, meeting, As fall i above, Dr. Rodriguez's independent evaluation of RZ. As discussed above, Dr Rodriguez's independent evaluation of RZ. concluded that a 6:1:1 concluded that a 6:1:1 classroom in a D75 school would not provide R.Z. with a FAPE- and would classroom in a D7S school would not provide R.Z. with a FAPE and would be unsafe for a non- be unsafe for a non-_ambulatory student such as R.#. Instead, DOE relied on the flawed ambulatory student such as R.7. Instead, DOE relied on the flawed neuropsychological evaluation neuropsychological evaluation performed by Dr. Erik Moore, which misdiagnosed □□□□□ performed by Dr. Erik Moore, which misdiagnosed R.Z.. mischaracterized R.Z.'s educational mischaracterized R.Z..'s educational needs and abilities, needs and abilities, and failed to make appropriate program recommendations for R,#. because, and failed to make appropriate program recommendations for R.Z. because, inter alia, it inter alia, it disregarded the effect of R.Z. living in a bilingual household. [R718]. disregarded the ctfect of R.Z. living in a bilingual houschold. [R718]. 15

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The Plaintiffs were also denied any opportunity to object to or otherwise inquire into the The Plaintiffs were also denied any opportunity to object to or otherwise inquire into the change in R_Z.'s disability classification {rom "Traumatic Brain Injury" to "Multiple Disabilities." change in disability classification from "Traumatic Brain Injury" to "Multiple Disabilities." While the DOE claims the disability classification is "immaterial," that contention raises more While the DOE claims the disability classification is "immaterial." that contention raises more questions than mt answers. If it does not matter how astudent is classilied, why did DOE bother questions than it answers, If it does not matter how a-student is classified, why did DOE bother classification at all, and why does DOE object so vigorously to changing altering R.Z.'s classification at all, and why does DOE object so vigorously to changing it back to it back to Traumatic Brain Injury? Traumatic Brain Injury? Plaintiffs cannot, and should not be required to, speculate about the import of such a change. Plaintiffs cannot, and should not be required to, speculate about the import of such a change. If RZ. is better classified as "Multiple Disabilities." as DOE contends, DOE should be required to If R.Z. is better classified as "Multiple Disabilities," as DOE contends. DOE should be required to make the change at a duly convened CSE meetmg, al which Plaintilfs are present and can present make the change at a duly convened CSE meeting, at which Plaintiffs are present and can present the reports of independent neuropsychologists (such as Dr. Rodriguez) who have_per l the reports of independent neuropsychologists (such as Dr. Rodriguez) who have personally evaluated To allow DOE to make this change without including Flamtffs in the discussion is evaluated To allow DOE to make this change without including Plaintiffs in the discussion is a fcantdue process violation, a significant due process violation. While DOE may now claim that Plaintiffs are merely “speculating” about what may have While DOE may now claim that Plaintiffs are merely "speculating" about what may have happened at the meeting, that is entirely the point—Plaintiffs are reduced to speculating happened at the meeting, that is entirely the point—Plaintiffs are reduced to speculating about what could have occured because they were denied the opportunity to participate in what act. what could have occurred because they were denied the opportunity to participate in what actually occurred. This substantial procedural violation vely denied R.Z. a FAPE for the 2021-2022 occurred. This substantial procedural violation effectively denied R_Z. a FAPE for the 2021-2022 school year. school year. IL iBRAIN WAS AN APPROPRIATE PLACEMENT FOR R.#. I. iBRAIN WAS AN APPROPRIATE PLACEMENT FOR R.Z. Once the Plaintiffs have established the denial of a FAPE, Prong II of the Burlington’Carter Once the Plaintitfs have established the denial ofa FATE: f □□□□□ □ test asks whether the private placement chosen bv the Plaintiffs was appropriate. A private bove-Prong II of the Burliagton/Carter test asks whether the private placement chosen by the placement is appropriate if it is "reasonably calculated to enable the child to receive educational Plaintiffs was appropriate. A private placement is appropriate if it is "reasonably calculated to benefits," CLP. av-rel RUF». New York City Dep't af due, 746 F.3d 68, 82 (2d Cir. 2014), “such enable the child to receive educational benefits," C.F. ecsrel, RF. v, New York City Dep't of Edue., 746 F.3d 68, $2.-4(2d Cir. 2014), “such 18 16

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that the placement is likely to produce progress. not regression." CL. v. Scarsdale Union Free Sch. Distr. 744 F.3d 826, 836 (2d Cir. 2014) (quotation marks omitted). that the placement is likely to produce progress, not regression.” C_L. v. Scarsdale Union Free Sch. In determining whether a placement serves the educational needs of a child with a disability Dist., 744 F.3d $26, 836 (2d Cir. 2014) (quotation marks omitted). and is likely to produce progress, a court ist Consider the Lotality of the evidence, cluding In determining whether a placement serves the educational needs of a child with a disability “orades, test scores, regular advancement, or other objective evidence," fal; see also □□□□□□□□□ □□ and is likely to produce progress, a court must consider the totality of the evidence, including □ □ Aliant ate ARO Id 112-4 4, The test for private placement "ts “grades, test scores, regular advancement, or other objective evidence." fal; see alse Gagliarde, . . that it is appropriate, and not that it is perfect.” CLL, 744 F.3d at 8374 [quotation marks omitted). 489 F.3d at 112. The test for private placement "is that it is appropriate, and not that it is perfect." The standard for parents to | aie the apy wiety of a private placement CLL, 744 F.3d at 837 (quotation marks omitted). The standard for parents to demonstrate the me □ is lower than the standard achool districts must meet to demonstrate the provision of a F.APE. propriety of a private placement is lower than the standard school districts must meet to □ Frravile Geen 459 F.3d 356-01 364420 demonstrate the provision of a PAPE, Frank G., 459 F 3d at 364. DOE does not meaningfully contest that IBRAIN was an appropriate placement for □□□□ DOE does not meaningfully contest that IBRAIN was an appropriate placement for RZ. Defendants do not point to any record evidence establishing that iRRAIN was inappropriate or did Defendants do not point to any record evidence establishing that iBR.AIN was mappropriate or did . . □ not produce academic progress in R.Z. Although Defendants point to several areas where Plaintiffs not produce academic progress in R.#.. Although Defendants point to several areas where Plaintiffs — could have theoretically provided more evidence of R.Z.'s academic progress, the relevant inquiry could have theoretically provided more evidence of R.Z.'s academic progress, the relewant inquiry is Whether iBRAIN ts appropriate, not whether IBRAIN 1s perfect. □□□ 744 F.3d at 837. is whether is appropriate, not whether BRAIN is perfect. C_L.. 744 F.3d at 837. Indeed, . □ 1 there is sufficient evidence in the record that R#. recetwed an appropriate education there is evidence in the record that R.Z. received an appropriate education at IBRAIN. . aliBRAIN. Dr. Rodnguez, the mdependent neuropsychologist, stated in her report that "[R.#.] has Dr. Rodriguez, the independent neuropsychologist, stated in her report that "[R.#.| has made some □ made some f { tat nis since | significant qualitative improvements since beginning iBrain.... [R.Z.| has made clear qualitative improvements noticeable to both his academic and treatment team as well as to his parents at / home.” [R802], Dr. Rodriguez concluded that "[R.Z.] should continue to receive the highly improvements noticeable to both his academe and treatment team as well as to his parents at specialized instruction provided te him at iBrain. This school's integration of conductive education home." [R802]. Dr. Rodriguez concluded that "[R.2.] should continue to receive the highly into their curriculum is an empirically supported program that has led to improved fine and gross specialized instruction provided to him at iBrain. This school's integration of conductive education motor control in children with cerebral palsy." [R803]. into their curriculum is an empirically supported program that has led to improved fine and gross motor control in children with cerebral palsy," [R803], 17 Text in both

LE ALLEL (EES TP a} VUE Ie dt ALIA INN Pty fhe 2 Me EEL EE A AVE for Summary Judgment (Dkt. #33) In opposition. Defendants do not provide any expert testimony or other evidence that iBRAIN is not an appropriate educational setting for R.Z. Accordingly, Plaintiffs have satisfied In opposition. Defendants do not provide any expert testimony or other evidence that Prong II of the Burlington’Carter test. is not an appropriate educational setting for R.Z. Accordingly. Plaimtilts have satisfied | I. THE EQUITIES FAVOR THE PLAINTIFFS Prong I] of the Burlington-Carter test. The third Prong of the Burlington 'Carter test requires the reviewing court to determine HL THE EQUITIES FAVOR THE PLAINTIFFS whether the equities favor reimbursement. i. v New fort City Dep't of □□□□□ 229 F. Supp. 3d The third Prong of the Burlington’Carter test requires the reviewing court to determine 223 (8.D.N.Y. 2017). Courts enjoy ‘broad discretion’ in considering the equitable factors to fashion whether the equities favor reimbursement. LE, ¥ New York City Dep't of Edue., 229 F. Supp. 3d relief after it has found a violation of the IDEA." Jd... quoting Florence ae 223 (8.D.N.¥. 2017). Courts enjoy ‘broad discretion’ in considering the equitable factors to fashion Die Boa 3 ; . 510 US. Bat 164 1 □ □ □□ □□□ relief after it has found a violation of the IDEA.” Je. quoting Florence County School Dist. Four, . “Impertant to the equitable consideration is whether the parents obstructed or were $10 U.S. at 16. “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA." \ uncooperative in the school district's efforts to meet its obligations under the IDEA." C_L., 744 1 ear F.3d at 840 In her g PD, THO Ciccone Tn her THO Ciccone found that while the equities favored the Plaintiffs, a reduction found that the equities favored the Plaintiffs-but 1 1 Tet in in the □□□□□□□□□□□ in the reimbursement award was wartanted, [HO Ciccone attempted to justify this reimburaement-award \ aida □□□□□ reimbursement reduction by claiming that the tuition costs were unreasonable and transportation 118 just be sai \ + thal the tuition □□□□□ were costs were exorbitant [R48]—despite failing to cite any evidence in support of this contention. unreasonable and transportation costs were exorbitant: [R48 IHO Ciccone's opinion on this issue is arbitrary and capricious and deserves wits no deference from this Court. THO Ciccone did not document the costs of comparable programs fase THO Ciecone's opinion on this issue is arbitrary and capricious and deserves or transportation services, and, having no idea what the market rate of either is, had no basis for no deference from this Court. IHO Ciccone did not document the costs of comparable programs unilaterally deciding that the amounts charged by iBRAIN, or Sisters Travel and Transportation or transportation Services were unreasonable, exorbitant, or excessive. Besides having no comparable costs on | services, and, having no idea what the market rate of either is, had no basis for, : which to base her assertions. her conclusions are irrational. The "unreasonableness" of iBRAIN's deciding that the amounts charged by iBRAIN, or Sisters Travel and Transportation Services were tuition appears to hinge on whether the service providers were iBRAIN employees or independent unreasonable, exorbitant, or excessive. Besides having no comparable costs on which to base her contractors [R48], a distinction that makes sense only if employees work for [ree while : ions, her conclusions are irrational. The "unreasonableness” of □□□□□□□□□ tuition appears to hinge on whether the vice providers were IBR.AIN employees or independent 18 contractors [R48], a distinction that makes Text in both

LE ALLEL (EES TP a} VUE Ie dt ALIA INN Pty fhe 2 Me EEL EE A AVE for Summary Judgment (Dkt. #33) | independent contractors are 1 for their services. She also | that the contract between Plaintiffs and Sisters Travel and Transportation Services was "voidable" if independent contractors are compensated for their services. She also concluded that the contract the Jatter had not provided monthly invoices for its services to the former, that would have between Plaintiffs and Sisters Travel and Transportation Services was "voidable" if the latter had pj OR) Senta ieee Ee □□□ □□□ lon □□□□□□□□□ not provided monthly invoices for its services to the former. as that would have constituted a breach limely imvoice a customer for services rendered does nol mean that those services of contract. [R48]. This conclusion is erroneous, Failure to timely imvoice a customer for services rendered does not mean that those services become complimentary: Under Prong Ill of the Burlington'Carter framework, reimbursement can be reduced or an that those services eo entary, Under Prong III of the Burlington’Carter framework, reimbursement can be reduced or denied only if the parent fails to raise the appropriateness of an TEP timely Fails to denied only if the parent fails to raise the appropriateness of an TEP in a timely manner, fails to imake the child available for evaluations, or otherwise acts unreasonably, See □□□ 744 □□□□ □□ 840 . . . . oe □ Ast af □ elow. the balance of equities favors the □□□□□□ intiffs, make the child available for evaluations. or otherwise acts unreasonably. See C_L.. 744 F.3d at 840. = balovy; the-balance:af □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □□□□□□□

: 4, 2008). cited by DOE in its Memorandum of Law in Support of its Motion 19 for Summary Judgment, Dkt. No. 32, at pas Text in both

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the plaintiffs placed their child in a private school before the DOE could propose a public-school the plaintiffs placed their child in a private school before the DOE could propose a public-school location to implement their child's IEP. location to implement their child's IEP. By contrast. the Plaintiffs here cooperated with DOE throughout the process, attending CSE hy contrast. the Plaintiffs here cooperated with DOE throughout the process, attending meetings. producmg R.#. for examinations, and duly notifying DOE of their rejection of the CSE meetings, praducmye R.A. for exammations, and duly notifying DOE of their rejection of the proposed school location and their intention to place R.Z. in private programming before they proposed school location and their intention to place RZ. in private programming before they enrolled al iBRAIN, The only behavior DOE can point to as "unreasonable" is Plaintiffs’ enrolled R.%. at BRAIN, The only behavior DOE can point to as “unreasonable” is Plaintiffs' decision to reject DOE's proposed school location and keep R.Z. at iBRAIN, Yet the decision was | decision to reject DOE's proposed school location and keep R.Z. at iBRAIN. Yet! decision no doubt justified, given that the district's proposed school location was inappropriate for was no doubt justified, given that the district's proposed school location was inappropriate for RZ. Characterizing the Plaintiffs’ actions as “unreasonable” here would make all families who reject Characterizing the Plaintiffs’ actions as “unreasonable” here would make all families who reject DOE's proposed public-school location “unreasonable"—no matter how inappropriate—in favor DOE's proposed public-school location "unreasonable"—no matter how inappropriate—in Laver of private programming of private programming To proceed with Prong IT] of the Burlington Carter analysis, plaintiffs must show that the To {with Prong Il of the Burlingten Carter analysis, plaintiffs must show that school district denied their child a FAPE. If unilaterally placing their child in private programming the school district denied their child a FAPE. If unilaterally placing their child in private after the school district did net provide an appropriate public education is enough to deny a family programming after the schoo! district did not provide an appropriate public education is enough to reimbursement, then no family would ever be reimbursed lor private services. Although this is the deny a family reimbursement, then no family would ever be reimbursed for private services. result DOE would prefer, this is not what IDEA intended, and DOE's implication to the contrary Although this is the result DOE would prefer, this is not what IDEA intended, and DOE's should. be explicitly rejected. implication io the contrary should be ally rejected B The "Reasonableness of the Private School Tuition" is Not a Proper Factor to B, The" Reasonableness of the Private School Tuition" is Nota Proper Factor ta Consider, Consider, and, in Any Event, DOE Has Nor Established That iBRAIN's Tuition is and, # Any Event, DOE Has Not Established That iBRAIN's Tuition is Unreasonable Unreasonable DOF. contends that "Courts and hearing officers may also consider the reasonableness of the 5 7 3 □ DOE contends that "Courts and hearing olficers may also consider the reasonableness of the private school tuition" (ECF No. 32 at pg. 23) and cites two cases in support: 2LAd. v. New York : si : private school tuition" (ECF No, 32 at pg. 23) and cites two cases in support: □□□□□ □ New York City of T38 F.3d 442, 461 (2d Cir, 2014) and MAP ou New Fork Cig Dep't of Eaue., City Dep't of Edue., 738 F3d 442, 461 (2d Cir. 2014) and AP. v. New York City Dep't of □□□□□ No. 21 CIV. 7439 (LGS}, 2022 WL 4109774 (8.D.N.Y. September 8, 2022). However, although eee . _ No. 21 CIV. 74389 (LGS), 2022 WL 4109774 (S.DNY. piember 8, 2022). However, both cases reference the reasonableness of private school turtion as a factor in balancmg the = although 20 t cases reference the reasonableness of private school tuition as a factor in □□□□□□□□□ the

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equities. neither case looked to the reasonableness of the private school's tuition at issue to balance equities, neither case looked to the reasonableness of the private school’s tuition at issue to balance the equities, EAs. does not cite a case £ port the proposition that the reasonableness of the the equities. does not cile a case to support the proposition that the reasonableness of the school's tuition should be considered, and CP. cites only ELM. that Areview of school's should be considered. and Af_P cites only A.M. to that end. A review of the cases sci tst Soe the cases that cite that cite demonstrates that there is mof one case in which the unreasonableness of the tution ‘ ‘ L 1 EM, isttates that there is Hot one case in which the unreasonableness of the tuition was used to reduce reimbursement. Considering that £.\4, was decided almost a decade ago, this j ay ‘ □ wes used to reduce reimbursement, Considernng that ELM. was decided almost a decade ago, this factor, which is stated as dicta and has never been applied, should not be considered in balancing ee □ ‘ factor. which is stated as dicta and has never heen applied, should not be considered in balancing the equities here. the equities here. But even if the reasonableness of I3RAIN's tuition were to be considered, DOE has not be oh a oe But even if the reasonableness of 1ARAIN's turtion to be considered, DOE has not established that the tuition is, as it claims, “excessive and unreasonable." ECF No. 32 at pg. 24. wig : 5 : □□□□□□ □□□□ □□ established that the tuition is, as it claims, "excessive and unreasonable.” ECF No. 32 at pg. 24. DOE provides no evidence in support of this claim, aside [rom repeatedly calling the tuition at : 7 □ DOE provides no ewidence fer this claim, pt ide from □□□□□□□□□□ calling the IBRALN "excessive" and citing IHO Ciceone’s opinion, which, as discussed above, is arbitrary and i ‘ 5, ‘ i “i gongs ‘ tuition at iRRATN “excessive” and citing [HO Ciccone's opinion, which, as iscussed capricious—and should be afforded no deference from this Court, Defendants fail to recognize . . . . . □□ above, is arbitrary and capricious——and should be afforded no deference from this Court that IBRAIN provides an intensive and full-service program for students with severe and =. an 4 4 5 □ 5 Defendants fail to recognize that iGRADN provides an intensive and full-service program for demanding health management needs. Although the tuition may seem high to a layperson : □□ students with severe and demanding health management needs. Although the tuition may seem unfamiliar with the tuition these academies charge. it reflects the costs of providing the high- sce Spay ee x 2 high to a layperson unfamiliar with the tuition these academies charge, it reflects the costs of quality and comprehensive services necessary to educate some of New York City's most medically ca . , □ providing the high-quality and comprehensive services necessary to educate some of New York fragile children with disabilities. DOE does not provide tuition for alternative or similar programs oy . wast . create □ City's most medically fragile children with disabilities. DOE does not provide tuition for alternative within New York City and, therefore, has provided no evidence that the tuition that iBRAIN a : similar programas within charges is excessive, - . . □□ □□ New York City and, therefore, has provided no evidence that the tuition that iBRATN For the same reasons, DOF's claim that the transportation services the Plaintiffs contracted . charges is excessive. for were "also excessive and unreasonable" must likewise fail. The conspicuous lack of evidence □ For the same reasons, DOE's claim that the transportation services the Plaintiffs contracted presented to support this claim is even more absurd here, as DOF, provides similar transportation □ for were “also excessive and unreasonable" must aiseli > fail. 4 □□□□□□□□□ 3 services (or contracts with private companies to provide the services) to children throughout New . au 5 evidence to support 4 claim is even more absurd here, as DOE provides similar transportation services (or contracts with private companies to provide the 21 services) to children throughout New: Text in both

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York City——and therefore has access to many contracts for such services. To support its argument York City—and therefore has access to many contracts for such services. To support its argument that the cost of transporting R.Z. to and from school is excessive, the DOE could submit any one that the cost of transporting R.Z. to and from school is excessive. the DOE could submit any one of such contracts. Despite access to such "evidence" of the "excessive and unreasonable" cost of of such contracts. Despite access to such "evidence" of the "excessive and unreasonable" cost of | transporting R.Z., DOE comes empty-handed—with no evidence to de 1 its own transporting R.#.. DOE comes empty-handed—with no evidence aside from ts own conviction. conviction, DOE, of course, may develop its own appropriate specialized program for children with | DOE, of course, may develop its own appropriate specialized program for children with traumatic brain injuries like R.Z. and provide transportation to and from such a program, In the traumatic brain injuries like R.Z. and provide transportation to and from such a program. In the absence of an appropriate program, however, IDEA allows parents to select appropriate private absence of an appropriate program, however, IDEA allows parents to select appropriate private services and then seek payment for those services from DOE with the money it receives from the services and then seek payment for those services from DOE with the money it receives from the federal government. The IDEA, however, does not allow a school district to refuse to provide federal government. The IDEA, however, does not allow a school district to refuse to provide services to children like R.Z., and then dictate the price it 1s willing to pay third parties who provide services to children like R.Z-., and then dictate the price itis willing to pay third parties who provide those services, If DOE can provide these services at a lower cost, DOE should be encouraged to those services. If DOE can provide these services at a lower cost, DOE should be encouraged to do so. But until DOE chooses to do so, this Court cannot allow DOE to eschew its duties and do so, Butuntil DOE so, this Court cannot allow DOE to: its duties obligations under federal law simply because DOE would rather keep the money it receives to and obligations under federal law: simply because DOE would rather keep the money it receives implement [DEA than provide it to families like the Plaintiffs here. to implement IDE.A- than provide it te families like the Plaintiffs here. CONCLUSION CONCLUSION Plaintiffs have tried, for years. have educated ata D75 DOE school, and have been Plaintiffs have tried, for years, to have R.Z. educated ata D7S DOE school, and have been let down by DOE each year. Even when DOE has created an adequate IEP, DOF has conststently | let down by DOE each year, Even when DOE has created an adequate IEP, DOE has consistently failed to provide R.Z. with the services his IEP requires, After years of failure, it is no longer failed to provide R.Z. with the services his IEP requires. After years of failure. it is no longer as to whether DOE will provide R.Z. with a FAPE—DOE is simply incapable of “speculative” whether DOE will provide R.4. with a FAPE—DOR is ply incapable of doing so. Afier it has been proven DOE, cannot (or will not) provide R.Z. with a FAPE, DOE cannot doing so. - fi it has been proven DOE cannot (or will not) provide □□□□ with a FAPE, then protest the cost of third-party providers who are doing so. Any allegation that the cost of DOE cannot then protest the cost of third-party providers doing so, Any allegation that educating or transporting RZ. is excessive or exorbitant must be based on facts and evidence. the cost of educating or transporting R.Z. is excessive or exorbitant must be based on facts and DOE has submitted no evidence that IBRAIN or Sisters Travel and Transportation Services costs evidence. DOE has submitted no evidence that iBRAIN or Sisters Travel and Transportation Services costs- 22 Text in both

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are unreasonable, exorbitant, excessive, or otherwise out of line with prevailing market prices. are unreasonable, exorbitant, excessive. or otherwise out of line with prevailing market prices. Indeed, because balancing the equities strongly favors the Plaintiffs, they are entitled to jeed. because balancing the equities strongly favors the Plaintiffs, they are entitled to reimbursement of the full amount they contracted to pay without reduction. reimbursement of the full amount they contracted to pay i t jon. Accordingly, the Court should. grant Plaimtits* motion for reconsideration, as it overlooked Accordingly. ihe Court should beer I ron □□ 1. rat relevant and controlling principles of law and facts, and afforded SRO Bates’ decision deference 1 i Le | neiples of ‘ la | SRO Bates’ that it did not deserve; reverse SRO Bates” decision and finding that DOE offered R.Z, a FAPE for vot al R¢ clei ul finding that DOE offered R.Z. a the 2021-2022 school year; grant Plaintiffs” motion for summary judament, finding that DOE did FAPE for the 2021-2022 school year- | : Pia not provide with a FAPE during the 2121-2022 school year_ that iBRAIN was an appropriate uy: f rent. fi t 4 a FAPI □□□□ 2 unilateral placement, that the equities favor the Plaintiffs; order DOE to reimburse Plaintiffs, or | that BRAIN was an appropriate unil placement-oed, that the equities favor the directly pay educational providers, tuition and all related expenses, including transportation; Plaintifls-aed: order DOE to reimburse Plaintilts i pay RZ idet and grant such other, further, and different relief as the Court deems just, proper, and equitable. tuition and all related expenses, including transportation: an i Dated: February 16, 2024 as the Court d New York, New York Dated: SHs- { New York, New York Respectfully submitted Brain Injury Rights Group, Ltd. Attorneys for the Plaintifffs) Respectfully submitted. Brain Injury Rights Group, Ltd. Attorneys for the Plaintiffs) By: Rory J. Bellantoni, Esq. (RB2901) 300 East 95"" Street, Suite #130 By: ae New York, New York 10128 Rory J. Bellantoni, Esq. roryiaipabilaw,org (RB2901) 300 East 95!" Street, #130) New York, New York 10128 Ce: All Counsel of record via ECF. rory(@ipabilaw.org

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PRELIMINARY STATEMENT -EDWIN and ROSA ZAYAS to I fs") submit this } t 1 1 PRELIMINARY STATEMENT Oils} asd Pole 6 34 spate Gled an od BoC DP S0fe) st □□ fled □□□□□ EDWIN and ROSA ZAYAS ("Plaintiffs") submit this Reply in further support of their □ , Motion for Reconsideration and in response to the opposition of Defendants DAVID BANKS and ’ = fer-Reply in further sit □ the NEW YORK CITY DEPARTMENT OF EDUCATION (collectively, "Defendants" or ! lor Recoitsiderstion espe ont "DOE"). Plaintiffs contend that reconsideration is necessary, as the Court overlooked relevant law Liu : : ees □□□ and pertinent facts in rendering its decision. Specifically, Plaintiffs seek reconsideration of the — ae — □ Court's Order entered on January 19, 2024. [ECF No. 39], which denied Plaintiffs' Motion for □ ' 1 ! Summary Judgment seeking funding for R.7.'s placement at iBRAIN for the 2021-2022 school Plamntiffs contend that reconsideration is necessary, 3 the doe year. rt _facts it ‘thin rendering its decision. Specifically, tie In the duc process proceedings brought under the Individuals with Disabilitics Education Plaintiffs seck reconsideration of thistle Court's Order entered on January 19, 2024. [loc Act ("IDEA"), State Review Officer ("SRO") Justyn P. Bates reversed the decision of Impartial do . Which denied Hse-Plaintifls’ Motion for Summary Judgment Hearing Officer ("THO") Diane Ciccone,’ finding DOE provided R.Z. with a free appropriate . he ae “BOE He 1 □ public education APIi") for the 2021-2022 school year, despite the fact that R.Z.'s assigned CRAZ.s te placer | for the 2021-2022 « -tachool □□□□ □□□□□ placement was independently determined to be unsafe. Indeed, Dr. Isabella Rodriguez conducted = □ ler tl Le □□ □ □ an Independent I‘ducational [valuation ("IE") from May to early June 2021 and determined that, : ‘ ; P □□ □ based on her extensive professional experience and observation of D75 classrooms, a special 6:1:1 “1H De i I : prot class that included autistic children would be detrimental—even dangerous—to R.Z.'s well-being. LL : Z =v ae □□□ [R 803]. In addition to her written evaluation, Dr. Rodriguez testified to this effect in the i tut : DiI underlying administrative proceedings. [R 258-261]. While Plaintiffs alleged DOE’s em Sait - tel : Individualized Education Program ("IEP") was deficient for several reasons—including lack of > . > — tld i i □□□□□ : music therapy, lack of AT services, and inappropriale grouping—DOE's failure to recommend a ls □ ed a elu ! ae □□□ safe placement for R.Z., who has severe disabilities rendering him especially vulnerable, was a el 120 Rod ae

' TIIO Ciccone correctly found DOE denied R.Z. a APE. : it - : |

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I iter How can an educational placement/program determined by an expert to be highly I | I ‘am d_by I highly inappropriate to the extent that it "could place the Student in danger” [R 46-47]. ever be considered i i é i ould 1 lent unger” [R 4 red a FAPE under IDEA? The answer is simple: it clearly cannot be. Plaintiffs submit that the Court \ I I 1 lea he. | □□□□ ( □ overlooked the nature and weight of the evidence that DOE's proposed placement was | ture 2 bt of 4 dence My tc 1_placeme □□□□ inappropriate because it endangered R.7. As such, the Court should grant Plaintiffs' Motion for 1a iat = d 2 hi hould grant t lot Reconsideration, and, upon such reconsideration, grant Plaintiffs’ Motion for Summary Judgment, Rec on, a I Joratis int P ! Lil ARGUMENT ARGUMENT L PLAINTIFFS' MOTION SHOULD BE GRANTED IN ITS ENTIRETY BECAUSE i PL : ) BI NI ! □ THE COURT OVERLOOKED RELEVANT LAW AND PERTINENT FACTS OV I i WAT V 4 I I □ SHOWING B.Z, WAS DENIED A FAPE 5 i Defendants contend that Plaintiffs have failed to identify any relevant law or facts the Court nis conten I ; I ouurt overlooked, and are attempting to re-litigate previously decided questions. ‘This is not the case, In 1 I “1 igate { 1 1 I not t denying the motion for summary judgment and granting the Defendants’ cross-motion, □ : Pla motion for summary judem: d_grantin haf mit tio) the Court erred in deferrmg to SRO Bates’ Decision and overlooking apposite and well-established the C I 1 ) Bat decision ‘ ‘ ‘ i case Jaw. SRO Bates incorrectly interpreted Second Circuit precedent in finding that DOE © law. Les IMcom interpreted Second Circuit precedent ding that DG. provided witha PAPE during the 20212022 school year. Even more alarmingly, SRO Bates i i | vi iim 1 sv. SRO exhibited a clear bias in grossly mischaracterizing the testimony of Dr. Rodriguez. an independent I . ar h rossly miseharacter mez, dex clinical psychologist, while ignoring corroborative testimony offered by witnesses affiliated with ! Lips £ | : I □□□ the DOE that supported Dr. Rodriguez's claims. ) 1 vlriguies's elain In the Second Circuit, the degree of deference to be given to an SRO opinion is based on i t le { to an SRO) opinion “the quality of the opinion and the court's institutional competence.” CLP. eral ALP) vy New { 1 1 mal ‘ □ y New York City Dep't of Edue,, 746 F.3d 68, 77 (2d Cir, 2014) (citing MLAL ». New York City Dep't York City Dep't of Educ. 7 ne NET □□□ □□□□ Cay □□□□ of 685 F.3d 217, 244 (2d Cir, 2012) see alse TC. NULC, Dep't of Educ, 13-CV- of Educ. G85 F.3d 2 244 ( 2 ni KC. Dep □ □ Text in both

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3477 (VEC), 2016 U.S. Dist. LEXIS 42545, at *15—16 (S.D.N.Y. March 30, 2016). Here, □ evant | {ave Tas Plaintiffs contend the Court should afford the SRO no deference, as the SRO's opinion is not ior. the Court has discretion to consider equitable factors relating to the well-reasoned based on the relevant law and pertinent facts. reasonableness of the Plaintiffs’ actions when fashioning relict courts may Furthermore, the Court has discretion to consider equitable factors relating to the not substitute their notions of ‘seeed" educational pol vwlicw" for those of the school reasonableness of the Plaintiffs" actions when fashioning relief.” While courts may not substitute authorities they review. @ court accords no particular deference to « □□ their notions of “sound educational policy” for those of the school authorilics they review, @ SRO on pure questions of law. Arlington Cent, Soh, Dist, v, LuP., - T } t t > PPalerakt » Fi Free □□□ DY. court accords no particular deference to an SRO on pure questions of law. Arlington Cent. S.D.N.Y. 2006), Watccak v. Fla. Union Free Sch. Dist., 3 4 3d Cir, 1998); also Carmel Cent Sch. □□□□□ VP. □□□□□□ Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 696 (S.D.N.Y. 2006), Walezak v. Fla, Union Free Sch. (2d Cir. 1998), see also Carmel Cent. Sch. Dist. v. V.P. □□□□□ Dist., 142 F.3d 119, 129 (2d Cir. 1998); see also Carmel Cent. Sch. Dist. v. ex-rel. GP., GPs 3 - Nec tere hee ate □□□□□□ □□ □□□ 373 F. Supp. 2d 402, 408 (S.D.N.Y. 2005), aff'd sub nom. Carmel Cent. Sch, Dist. v. F-P., 192 Leadea ALOS F. App'x 62 (2d Cir. 2006) ("[A]n SRO's determination of a pure question of law is not subject to deference"); Reid ex-rel. Reid v. 12.C., 401 V.3d 516, 521 (1).C. Cir. 2005) (no deference is to □□□□□□□□□□□□□□□□□□□□□□□□ 2006). SRO's determination of a pure: □□□□□□□□□□□ be given to a hearing officer's conclusion where that conclusion "raises an issue of statutory law ts not subject to deference"); Reid ex-rel. Reid v. D.C ra construction, a pure question of law that courts review de novo"). Patil SOE | (D0. Cir 2005) (no deference is to be given to a hearing officer's conclusion Given the foregoing, the Court erred in granting SRO Bates’ decision more deference than where that conclusion "raises an issue of statutory construction, a pure question of law that □ a deserved. cquilics is a duly that Congress tasked the Court to perform without SoUtte reVieNsle: HOW) << i yoas . Give : foregoing : Cour ed in granting Hi HSRO unwarranted deference to administrative officers. Plaintiffs are entitled to summary judgment, as stven: the Toeegeine, Whe: COM, Srnec. □□ eranting. the record shows DOE denied R.Z. a FAPE for the 2021-2022 ESY. and the Parent's unilateral more deference than deserved, Considering equities is a duty that Congress tasked 4 placement at iBRAIN was appropriate. ee . . Court t □□□ ithout warranted deference 1 : Plaintiffs Have Shown that the Court Overlooked Material Facts Demonstrating a 2 EE, NS ES eee Oe That the IEP Was Defective and R.Z. Was Denied a FAPE □ 8 cate na. s □□ cers, Plaintiffs are entitled to 1 I □ as New York State regulations implementing IDEA mandate that if a student's [EP requires #3 □□□□ the record shows+het DOE denied R.Z. a FAPE for the 2021-2022 ESY, and the Parent's unilateral placement at iBRAIN was appropriate, SW. v. New York City Dep't of Educ., 646 T. Supp. 2d 346, 360 (S.D.N.Y. 2009), see also Gagtiardo v. Arlington Cent. Sch, Dist., 489T.3d 105, 112 (2d Cir. 2007), citing Flerence Cnty. Sch. Dist Four v. Carter By & Through ‘ a a ates eh Carter, 510 U.S. 7, 16 (1993) af tae : 3 five 7 i Text in both

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them to be placed in a special education class, “the size and composition of a class shall be based them to be placed in a special education class, “the size and composition of a class shall be based on the similarity of the individual needs of the students according to (i) levels of academic or on the similarity of the individual needs of the students according to (i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels educational achievement and learning characteristics; (11) levels of social development; (iti) levels of physical development; and (iv) the management needs of the students in the classroom, NV. of physical development; and (iv) the management needs of the students in the classroom. N.Y. Comp, Codes RB. & Reps, tit, 8. | (WW 2Wid-Civyy | ded) Comp. Codes R, & Regs. tit. 8 § 200, 6(h2\(i)-(iv) (emphasis added) i = othe WoW R.Z.'s proposed IEP for the 2021-2022 school year placed him in a 6:1:1 classroom—a class R 7.'s-pro IEP for the 2021-2022 school vear req 4 placed □□□□□□□ with a maxinum of six students, with one special education teacher and one group Asse 2a a maximum of six students, with one special education teacher paraprofessional—at the Horan School ("Horan School”), [R 537], At the time of DO's offer, and one group paraprofessional I □ Plaintiffs had a report by Dr. Isabel Rodriguez, an independent neuropsychologist who chiuonmes at the D7$ Horan School {Horan School"). | □□□ At the time of DOE's had examined R.Z., which found "a 6:1:1 District 75 classroom placement" such as the one offer. Plaintiffs had received a report by Dr. Isabel Rodriguez, an independent proposed by DOE at the Horan School could not "...provide the high degree of individualized neuropsychologist who had examined R.Z., + 1 sb “a □□□□□ District attention including two-person transfer, nursing care, intense rehabilitation, and technology- 75 classroom placement” such as the one proposed by DOE at the Horan □□□□□□ facilitated one-to-one instruction that [R.Z.] requires in order to make functional gains," [R803]? * provide the high degree of individualized attention including two-person transfer, nursing The report also stated, "D75 programs offen melude children with autism spectrum disorder care, intense rehabilitation. and technology- facilitated one-to-one instruction that [R.Z.] requires diagnoses, a presentation that requires different academic and supporiive needs than those in order to make functional gains." [R803]. The repert also stated “D75 programs often needed of a child with an acquired brain injury." [R803]. Dr. Rodriguez recommended that "[R.Z. ] include children with autism spectrum disorder diagnoses, a clinical presentation that requires should remain in his current 6:1:1 special educational setting at iBrain for the remainder of his different academic and supportive needs than those needed of a child with an acquired brain education.” [R803]. Accordingly, the Plaintiffs rejected DOE's proposed school! location and re- injury.” [R803]. Dr, Rodriguez recommended that "[R.Z.] should remain in his curtent 6:1:1 enrolled RZ. at BRAIN, special educational setting at iBrain for the remainder of his education.” [R803], Accordingly, SRO Bates claimed Dr. Rodriguez's testimony was "rife with generalizations and the Plaintiffs rejected DOE's proposed school location and re- enrolled at □□□□□□ unsupported hypotheticals ... and stereotypes of students with different disability classifications..." unsupported hypotheticals ... and stereotypes of students with different disability classifications...” In doing so, SRO Bates ignored the confirmatory testimony of Michelle Lefaivre, the [R32-R33]. In doing so, SRO Bates ignored the confirmatory testimony of Michelle Lefaivre, the Rodriguez's entire evaluation can be found at R707-REO9. ADE Rdicioluasaeatlen wanluatton Text in both

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Horan School assistant principal. who also testified at the underlying administrative hearing. Ms. Lefaivre testified that "the majority of students in our 6:1:1 program are students on the autism spectrum...” [R375]. Most students inthese classes are also ambulatory, [R377]. SRO Bates further Horan School assistant principal, who also testified at the underlying administrative hearing. Ms. . . ck . cae ignored the guidance of the United Federation of Teachers, the union representing the teachers Lefaivre testified that "the majority of students in our 6:1:1 program are students on the autism . . . yen pee employed af DOE schools, which bes : oon in a 6:1:1 class—se: spectrum..." [R375]. Most students in these classes are also ambulatory. [R377]. SRO Bates further , : 3 ° "Student's behavior 1s charactenzed as aggressive, self-abusive or extremely withdrawn and with ignored the guidance of the United Federation of Teachers, the union representing the teachers ‘pas severe difficulties in. d | i i □□□□ employed at DOE schools, which recognizes that in a 6:1:1 class: "Student's behavior is a characterized as aggressive, self-abusive or extremely withdrawn and with severe difficultics in the acquisition and generalization of language and social skill development.’ These students "usually" require "a specific behavior management program." Jd. Although courts often defer to administrative officers’ decisions. “the deference owed to an SRO Bates’ unsupported conclusions about Dr. Rodriguez deserved no deference. Although SRO's decision depends on the quality of that opinion.” RE v New York City Dep't of □□□□ courts often defer to administrative officers’ decisions, "the deference owed to an SRO's decision 3 1 167 A012), (emphasis added), Courts may consider depends on the quality of that opinion." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189 “whether the decision being reviewed is well-reasoned and whether 1 was based on substantially (2d Cir. 2012). (emphasis added). Courts may consider "whether the decision being reviewed is greater familiarity with the evidence and the witnesses than the reviewing court." Ja, quoting well-reasoned and whether it was based on substantially greater familiarity with the evidence and Af Bt 4 14. □□ Courts the witnesses than the reviewing court." /d., quoting /.H., 685 F.3d at 244. Courts have held that have held that an inadequately reasoned decision [ails to carefully consider significant evidence. an inadequately reasoned decision fails to carefully consider significant evidence. Scott ex-rel. CS. Seatt ex-rel, CLS, : E Eat I AR + v. New York Cily of Educ., 6 F. Supp. 3d 424, 440-41 (S.D.N.Y. 2014). SRO Bates arbitrarily and capriciously discounted Dr. Rodriguez's independent expert SRO Bates arbitranly and capriciously discounted Dr, Rodriguez's □ rt testimony—and IHO Civcone's findings regarding the same—substituting his own opinion Lor that festimony——and □ : Irie □ th tit of an expert in the field. The SRO's conclusion that DOE's proposed grouping did not deny R.Z. a his own opinion for | {an expert in the field, 4 : SRO's conclusion that DOF’s FAPE was baseless and should be afforded no deference. The Court should overturn SRO Bates’ proposed prouping did not deny R.#. a FAPE was baseless. should be afforded no deference decision that Defendants did not provide R.Z. with a FAPE during the 2021-2022 school year. : Court fndinest □□□□ _bat SRO Bates misapplied the law in finding that Plaintiffs' rejection of DOM's offer was the ision that Defendants did not provide R.Z. with a FAPE ¢ the 2021-2022 school year. 4 https:/Avww.uft.org/‘teaching/students-disabilities’special-classes/special-class-staffing-ratios. = 7 a —— Text in both

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: . . . . tyre necul: fill that th t hih i □□ New □□□ Crp Den't type of “speculative” challenge that the Second Circuit prohibited in MLO. v. New York City Dep't □□□□ □□□ of 793 Fad 236 (2d Cir, 2015). In the Second Circuit held that parents can of Bd. 6 I } prospectively challenge the proposed school location 25 long as the prospective challenge is not —— ee ee ij bi ‘ oe 3s 2 ey Y A a Fad at 244 To the contest of improper □□□□□□□□ clans, it 1s speculative.” 793 Fad at 244. In the context of improper grouping claims, it is ee as . impermissibly speculative fora parent to claim denial of a PAPE by speculating that the proposed impermissibly speculative for a parent to claim denial of a FAPE by speculating that the proposed APSE abe UE AES SR eT TT 2A PESE = i school, which theoretically could plage the student in a classroom willy the appropriate grouping, school, which theoretically could place the student tn a classroom with the appropriate grouping, ‘ si sia i still would not place the student in the grouping required by the student's JEP, But that is not the still would not place the student in the grouping required by the student's IEP, But that is not the 5 case here.” case here, Plaintiffs have never argued that the Horan School could not prowide R.Z.'s IEP-required Se ee a 6:1: class placement. Instead, Plaintiffs assert (and have asserted throughout) that because of R.Z.'s ; ———— —————— □□□□ particular disabilities and needs, DOE 6:1:1 classrooms are inappropriate and unsafe for R.A. and would thus not allow him to progress academically. Far from being "speculative" Plamtifls’ — ee neenencer rene on ener □ concerns were grounded in the IEE and the opinion of independent expert Dr, Rodriguez, loenis were Ju dy gre vali the apini dey □□□□ as corroborated by Horan School Assistant Principal Michelle Lefaivre and the guidance of the . . = □ United Federation of Teachers. Rather than arguing that DOE simply would not provide an z I ul wide appropriate class grouping when they could, the Plaintiffs asserted DOE could not provide eee eat □ appropriate class groupings based on facts and evidence regarding the typical 6:1:1 class a SS — = specifically affered at the Horan School. ———— Plaintiffs have demonstrated that the Court erroneously deferred to SRO Bates's decision, en = a = □ □ which discounted expert testimony and misapplied the relevant law. In so doing, the Court ignored were Perera TT eee * The cases cited by SRO Bates have similar fact patterns. See Cv. Mew Fork City Dep't of Edue., 643 F. App'x 31 1 Cir 20,6) (the child was not denied a PAPE because the parent alleged thatthe proposed school location did (2d Cir. 2016) (the child was not demed a FAP because the parent alleged that the proposed school location did not contain. the appropnate classreom grouping): GS.» New YonkCin: Dep'taf Educ. No.1 not contain the appropriate classroom grouping), v. New Fork City Dep'tof Educ, No. 15-CV-5187 (RA), 2016 | Sept_19. 6) impermissibly speculative (allege that the school would nat place WL 5107039 (S. DY. Sept 19, 2016) (it was ompernmissibly speculative to-allege that the school would not place ne student in the appropriate grouming: when the school could Lc ve New Fort Ci □□□ □□□□ □□□□ No 15 the student in the appropriate grouping when the school could dose); (0. 2 New Fork Cite Dep't of Educ, No. 15 ry, BA WT, SDNY Sept, 6, 2016) (speculative to allege thot the proposed school wenld CTV, 4002 (PAC), 2016 WL 4690411 (8.D.N.Y. Sept. 6, 2016} (speculative to allege that the proposed school would not be able to implement the student's IEPL not be able to implement the student's IEP). Text in both

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facts showing the IEP was defective. Plaintiffs are thus entitled to summary judgment, as vw the record shows DOE denied R.Z. a FAPE during the 2021 2022 school year, and the Parent's For the school district to provide a student with a FAPE, it must (a) comply with the procedural unilateral placement at iBRAIN was appropriate. requirements outlined in the IDE.A and (b} develop an IEP reasonably calculated to enable the student to B. Plaintiffs Were Not Offered an Opportunity for Meaningful Participation in the TEP Process, Which Led to R.Z. Being Denied a FAPE receive educational benetits. See fol ef Educ. of Hendrick Hudson Cor □ □□□ For the school district to provide a student with a FAPE, it must (a) comply with the Dist., Westehester si ae □ □□ 5.176, OF □□□□□□ and □□□□□ procedural requirements outlined in the IDEA and (b) develop an IEP reasonably calculated to Pawling Cent Soh, zU03), enable the student to receive educational bencfils. See Bd. of Educ. of Hendrick Hudson Cent. Sch. unt nent of complying with the procedural requirements outlined in Dist., Westchester Cnty. v. Rowley, 438 U.S. 176, 206-07 (1982) and Cerra v. Pawling Cent. Sch. IDEA is allowing parents to participate in their child's [EP meeting. The public agency Dist., 427 F.3d 186, 192 (2d Cir. 2005). An integral component of complying with the procedural “responsible for providing education to_ children with disabilities" (34 +) requirements outlined in IDEA is allowing parents to participate in their child's IEP meeting. The ; public agency "responsible for providing education to children with disabilities” (64 C.TE_R. §3 ‘jis required to "take steps to ensure that one or both of the parents of a child with a § 300.33) is required lo “lake steps to ensure that one or both of the parents of a child with a disability are present at each [EP meeting or are afforded an opportunity to participate," including disability are present at each I]'P meeting or are afforded an opportunity to participate," including providing ample notice and "scheduling the meeting at a mutually agreed on time and place." providing ample notice and "scheduling the meeting at a mutually agreed on time and place." 34 Re 22-1 aan □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Far : □□ □□ □ § 300.322 (a). Doug C. v. Hawaii Dep't of Educ., 720 F.3d 1038, 1044 (9th Cir. 2013). CPR: Dove Cv. Hawati Dep't of Rduc. 720 { □□□□ As the Ninth Circuit noted, "Procedural violations that interfere with parental participation As the Ninth Circuit noted, “Procedural violations that interfere with parental in the IEP formulation process undermine the essence of the IDEA. An IEP that addresses the participation in the TEP formulation process undermine the essence of the IDEA. 4m JEP child's unique needs cannot be developed if those people who are most familiar with the child's that addresses the child's unique needs cannot be developed if those □□□□□□ who are most needs are not involved or fully informed." Amanda J. ex-rel. Annette J. v. Clark Cnty. Sch. Dist., familiar with the child's needs are not involved or fully informed.” Amanda J. □□□□□□□□ Annette J. 267 F.3d 877, 892 (9th Cir. 2001) (emphasis added), v. Clark Caty. Sch, Dist: 82 te 267 F.3d § □□ (9th Cir, 20H) To atford parents a meaningful opportunity to take part in creating their child's IEP, a school | ). district must try to schedule the IEP meeting at a mutually agreed-upon time and place. 34 C.F.R. To afford parents a meaningful opportunity to take part in creating their child's IEP, a school § 300.322(a)(2); N.Y. Comp. Codes R. & Regs. tit. 8, § 200.5(d). A school district may conduct a district must try to schedule the TEP meeting at a mutually agreed-upon time and place. 7 at + ty JO00.327(uW2) N.Y. Coy district may conducta Text in both

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‘ meeting without a parent present only jf "the school is unable to convince the parents that meeting without a parent present only if "the school is unable to convince the parents that they should attend. Here. the school must have a detailed record of its attempts. and the results of SE mit a pra es § 8 unable to cot 2 the s tha wo 2: et tat ati. is ace "NOY Cy odes □ □□□□□□ they should attend. Here. the school must have a detailed record of its attempts, and the results of those attempts, to arrange a mutually agreed on time and place.” N.Y. Comp. Codes R. & Regs. - NWSE 1 it, 8, § 200.5(4\(3 those attempts, to arrange a mutually agreed on time and place.” N.Y. Comp. Codes R. & Regs. tit § 200.5(4)(3) tit. 8, § DOE's feeble attempt to obtain the Plaintiffs! participation in the August 2021 CSE fell far DOE's feeble attempt to obtain the Plaintiffs’ participation in the August 2021 CSE fell far short of what was legally required, DOE sent ene email to the Plaintiffs less than seven days before v's feeble a ‘0 obte 2 Pla cips 2 Augus 21 CSE fell f 3 □ short of what was legally required, DOF sent are email to the Plaintiffs less than seven days before five dated its OE: antddateradly get Tose thesmnetings [RABI TS6): EE □□□□□ □□□□□□ □□□ the date and time DOE waifareralfy set for the meeting. [R181-R186], DOK never followed up when the Plaintiffs failed to respond because the email had gone to their junk folder. [R295-R296] when the Plaintiffs failed to respond because the email had gone to their junk folder, [R295-R296|, There was no attempt to held the meeting at the requisite “meutually agreed-upon time and Thiers Wak te hold this paeeting ‘at the requisite "wintually agreedsanon Hae wed place." ‘The DOE then made one phone call to the Plaintiffs on the dare of the meeting, and when ec ie e " = place." The DOE then made ene phone call to the Plaintiffs on the date of the meeting, and when no one answered the phone, proceeded to hold the meeting. [R187] Even if the Plaintiffs had no one answered the phone, proceeded to hold the meeting, [R187] 7 Even if the Plaintiff had answered the phone call, such notice would not have satisfied the notice requirements of the IDEA. answere e, proceede eeting. .' Eve e Pla s ha ¥ ae Pe ni I 200 ew ice nded 1 □□□ ore answered the phone call, such notice would not have satisfied the notice requirements of the IDEA Hae Comp, Cates ae Bege: tit 200-5) 1) okie must bs: protvicled sr □□□□□□□□□ aud □□□□ N.Y. Comp. Codes R. & Regs. tit. 8, § 200, 3(e)(1) (notice must be provided in writing and more than five days before the meeting). Lstorethomectingh Along with the clearly insufficient notice, it was also a pure violation of IDEA for the district avs before ecling) \long with the clearly insufficient notice, it was also a pure violation of IDEA for the district to hold the meeting in the absence of the Plaintiffs. without the Plaintiffs affirmatively refusingto Along clearly 1s ce ce, as also a DEA ee disinic ° □ □ to hold the meeting in the absence of the Plaintiffs, without the Plaintiffs affirmatively refusing to participate. [f'the parent affirmatively opts nat to participate, the district must obtain the parent's participate. Ifthe parent affirmatively apts not to participate, the district must obtair the parent's consent to proceed. As federal regulations state, a CSE. meeting may be conducted without a parent consent to praceed. Ax federal regulations state, a CSE meeting may be conducted without a parent arpa "The -public-agency: js: tnable:-to:convinge: ihe patente: that ‘they. □□□□□□ attend, only if “the public agency is unable to convince the parents that they should attend.” 34 C.F.R. § 300.322 (d) (emphasis added). Here. the Plaintiffs never said they did not wish to attend the ait i tS 500.522 (d) (emphasis added). Here, the Plaintiffs never said they did not wish to altene 1 on Special Edueation tr See Davis Banks, No. 210CV3265PKCPK, 2023 WL 6214107, at °12(EDNY. Sept 25, 2023) (By holding the 7 a . June 5th meeting without Plaintiff, Defendants predetermined .0.'s placement and prevented Plaintiff from □ = participating in the [EP process. Gk, 777 F. Supp. 2d at 648. Accordingly, the Court concludes that ae ©.0, of a FAPE for the 2019-20 school year) Text in both

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mecting, and it cannot be said the district could not convinec them. Instead, the Plaintiffs missed meeting, and it cannot be said the district could not convince them. Instead, the Plaintiffs missed one email and one phone call on the day of the meeting and then lost the opportunity to participate one email and one phone call on the day of the meeting: and then lost the opportunity to in the formation of R.Z.'s IEP. participate in the formation of R.Z."s LEP, bedisputed that DOP. did nor prowide:the:cequisite notice OF he, August 2021, CSH | It cannot be disputed that DOE did not provide the requisite notice of the August □□□□ the Plaintiffs, ‘thersby-failing in their obligations under-the IDE.A.to ‘ensurs that the meeting to the Plaintiffs. thereby failing in their obligations under the IDEA to ensure that the could parlicipatc in the mecting. Yel SRO Bates refused lo "review whether the district | Plaintiffs could participate in the meeting. Yet SRO Bates refused to "review whether the district □□□□□□□□□□□□□□□□□□□□□ atiendangs at thes T-méeting™ (R22, 2.8] because he look sullicient steps to ensure the parents attendance atthe CSE meeting” [R22. □□□□ because he eursorily concluded that any alleged process violation could not rise to the denial of a FAPE. It is sorily concluded that-any alleged process violation could not rise to the denial of a FAPE. It is Bates-linds Support-tor the contention that. procedural ‘violations, such as the unclear where SRO Bates finds support for the contention that procedural violations, such as the one here, cannot rise to a denial of FAPE, especially after the Supreme Court in Rowley found that otie herd; cannot rie toa denial OF PAPE, expecially after the Supteme Countin □□□□ □□□□□□□□□□ for the school district to provide a student with a FAPE, one thing it must do is comply with the for the school district to provide a student with a PAPE, one thing it must do is comply wath the procedural requirements outlined in the IDIVA, Board of lidue. of Ilendrick Iludson Central rocuibiral réquivanents i in the IDEA, Board of Educ. of Hendrick Hudson School Dist., Wesichester County, 458 U.S. at 206-07 (emphasis added). The ill-reasoned and Central Schoal Dist, Westchester County, 1 6-07 (emphasis counterfactual conelusion by SRO Puales, thar procedural violations cannot risetoa denial eALE, added}. The ill-reasoned and counterfactual conclusion by SRO Bates. that procedural violations should nodeterence-fom this Court cannot rise toa denial oP FAPE, should enjoy no deference from this Court, Consequently, Plaintiffs have demonstrated that the Court crroncously deferred to SRO es ; : : □□ □ Bates' decision, which improperly—and with no explanation—discounted the Plaintifts' inability ‘ . ; ti J | □ □ lo meaningfully participate in R.Z.'s IEP, thereby failing to uphold New York State law and well- ey ei sae si i □ established legal precedent. In so doing, the Court ignored material facts proving that the IEP was a , 7 defective. Plaintiffs are thus entitled to summary judgment, as the record shows that DOE denied i ; □□□□ a FAPE for the 2021-2022 ESY, and the Parent's unilatcral placement at iBRAIN was □ ‘ ; jizg ae □□□ appropriate. Text in both

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CONCLUSION : For the reasons outlined above, Plaintiffs request that the Court grant the Plaintiffs' Motion : A ove, Plaintiff: LUE Sh quits for Reconsideration, grant Plamtiffs the relief sought in their Complaint, and grant the Plaintiffs psi Lad here eat : : □ any other, further, and different relief that the Court deems just, proper, and equitable. Hat aes seem Dated: | ‘ &, 2024 Dated: April 8, 2024 New York. New York New York, New York Respectfully submitted, Respecttully submitted, Brain Injury Rights Group, I td. Brain Injury Rights Group, Ltd. Attorneys for Plaintiffs / {rtorneys for □□□□□ By: SS, Ataur Raquib, Esq. (5860523) By: 300 East 95th Street, #130 New York, New York 10128 alaur@pabilaw org

10 Text in both