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IN THE SUPREME COURT OF OHIO
CASE NO. 2010-1401
STATE ex rel. ELECTRONIC CLASSROOM OF TOMORROWRelator
-vs-
CUYAHOGA COUNTY COURT OF COMMON PLEAS;HON. RONALD SUSTER; HON.
JAMES D. SWEENEY; SUPPORTIVE
SOLUTIONS TRAINING ACADEMY, L.L.C.Respondents.
ORIGINAL ACTION IN MANDAMUS AND PROHIBITION
RELATOR'S EXHIBITS
PAUI, W. FLOwaas Co. L.P.A.
30 Public Sq., Ste 3500
Cleveland, Ohio 44113
(216)344-9393
Fax: (216) 344-9395
John A. Demer, Esq. (#0003104)James A. Marniella, Esq.
(#0073499)DEMER & MARNIELLA, LLC2 Berea Commons, Suite
200Berea, Ohio 44017(440) 8gi-1644FAX: (440) 891-1684
Deena M. Giordano, Esq. (#00734o8)370o High StreetColumbus, Ohio
43207
Attorneys for Relator, ElectronicClassroom of Tomorrow
^
SEP 0 7 2010
CLERK (1F COURTSUPREME COURT OF OHIO
Paul W. Flowers, Esq. (#0046625)[COUNSEL OF RECORD]
PAUL W. FLOWERS Co., L.P.A.
Terminal Tower, 35th Floor50 Public SquareCleveland, Ohio
44113(216)344-9393FAX: (216) 344-9395
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In accordance with Sup. Ct. Prac. R. I0.7, Relator, Electronic
Classroom of
Tomorrow, hereby submits the following evidence to be considered
in support of the
requests for writs of mandamus and prohibition.
PAtn. W. Fcowerzs CO. L.P.A.
50 Publlc Sq., Ste 3500
Zleveland, Ohio 44113
;216) 344-9393
Fex: (216) 344-9395
RespectfuIly,,S^ibmitted,
Paul W. Flowers, gsq. (#0046625)[COUNSEL OF RECORD]
PAUL W. FLowElzs Co., L.P.A.
Deena 94. giorcfano (ver authority)Deena M. Giordano, Esq.
(#0073408)
7ohn Demer(pei anthol'ity)John A. Demer, Esq. (#0003104)James A.
Marniella, Esq. (#0073499)DEMER & 1VIARNIELLA, LLC
Attorneys for Relator, ElectronicClassroom of Tomorrow
2
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INDEX OF EXHIBITS
Affidavit of Scott Kern dated August 30, 2010
......................................................... oooi
Articles of Incorporation dated February 8, 2000
................................................... 0003
Certificate of Incorporation dated February 11, 2000
.............................................. 0005
National Commission on Accreditation Certificate
.................................................. ooo6
Affidavit of Deena M. Giordano, Esq. dated January 8, 2010
.................................. 0007
Report of Leigh Manasevit, Esq. dated December 22, 2009
.................................... 0009
PAUL W. FLowerzs CO. L.P.A.
50 Public Sq., Ste 3500
:leveland,Okuo44113
(216)344-9393
Fax: (216) 344-9395
3
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Relator's Exhibits
has been
served by e-mail and regular U.S. Mail on this 3rd day of
September, 2010 upon:
Charles Hannan, Esq.Cuyahoga County Prosecutor's Office1200
Ontario St., 9th FloorCleveland, Ohio 44113
Attorney for Respondents, Cuyahoga County Court of Common Pleas,
Hon. RonaldSuster, Hon. James D. Sweeney
Maureen Connors, Esq.Ann S. Vaughn, Esq.6ooo Freedom Square Dr.,
Suite 165Independence, Ohio 44131
Attorney for Respondent, Supportive Solutions Training Academy,
L.L.C.
Respectfully submitted,
Paul W. Flowers, Esq. (#0046625)PAUL W. FLOWERS CO.,
L.P.A.Attorney for Relator,Electronic Classroom of Tomorrow
PAULW. FLOW e25 CO. L.P.A.
30 Public Sq., Ste 3500
: leveland, Ohio 44113
(216)344-9393
Fax: (216) 344-9395
4
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State of OhioElectronic Classroom of Tomorrow
County of Franklin AFFIDAVIT
I, Scott Kern, being duly cautioned and sworn according to law,
does hereby depose andstate as follows:
1. I am currently the President and Chief Financial Officer at
the ElectronicClassroom of Tomorrow (ECOT). I have held the
positions of President andChief Financial Officer since September
1, 2009.
2. I have been employed at ECOT in various positions since July
1, 2000.
3. ECOT is a not for profit corporation organized pursuant to
Ohio RevisedCode Chapter 1702. ECOT has been incorporated since
February 11, 2000.ECOT is also registered as a 501 (C ) (3)
corporation with the InternalRevenue Service.
4. ECOT is a Community School established pursuant to Ohio
Revised Code3314. As a community school, or a Charter School as
it's commonlyreferred to, ECOT is part of the state system of
public education.
5. ECOT is fully accredited through AdvancEd (formerly the
Commission onInternafional and Trans-Regional Accreditation) and
has been accreditedsince June, 2007.
6. ECOT was the first internet-based community school in Ohio
and iscurrently the state's largest community school. ECOT's
enrollmentexceeded 10,000 students in school year 2009-2010.
7. ECOT graduated 1,540 students in School Year 2009-20 10. In
order to begranted a diploma, ECOT students must pass the
achievement assessmentscontained in Ohio Revised Code 3301.0710 and
complete the high schoolcurriculum developed by ECOT.
ECOT enrolls students in grades K-12. ECOT currently employs
462teachers all of whom are licensed by the Ohio Department of
Education. All462 teachers are deemed "highly qualified" under the
No Child Left BehindAct of 2001.
9. As part of the state system of public education, ECOT derives
its operatingrevenue almost exclusively from state foundation funds
and federal funds.
Relat'or's Exs. 00013700 South Hlgh Street, SWte 95 C.olumksus,
Ohio 43207 888.326.8395 614.492 8884 fAX'. 614.492.8894
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10. ECOT receives funding from the Ohio Department of Education
on a perpupil basis. The formula used to determine funding to
internet-basedcommunity schools is contained in Ohio Revised Code
Chapter 3314 (C) (1)and (C ) (2). The Ohio Department of Education
deducts money from thestate education aid calculated for each city,
exempted village or local schooldistrict whose student is enrolled
at ECOT. In school year 2009-2010,ECOT received $5,768.00 per pupil
from the Ohio Department ofEducation. We receive no share of local
property taxes to defray the cost ofeducating our students. School
Districts are required to verify eachstudent's enrollment in order
for ECOT to receive funding for a student.
11. ECOT is also the sub-recipient of federal funds pursuant to
such federalprograms as The Elementary and Secondary Education Act
of 1965,(reauthorized by No Child Left Behind Act of 2001), The
McKinney-VentoHomeless Assistance Act, The Individual with
Disabilities Education Act of2004 and the American Recovery and
Reinvestment Act of 2009.
FURTHER AFFIANT SAYETH NAUGHT:
SWORN and subscribed in my presence the ^day ofAugust, 2010.
Relator's Exs. 0002
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Doc ID --> 200004000112
ARTICLES OF INCORPORATIONOF THE
ELECTRONIC CLASSROOM OF TOMORROW
RECEIVEDFEB08p000
J.IKENNEfH 8[ACMNELLSECRETARYOFSTATE
The undersigned, desiring to form a nonprofit corporation
pursuant to Chapter 1702 of theOhio Revised Code, does hereby
certify that:
FIRST: The name of the corporztion shall be the ELECTRONIC
CLASSROOM OFTOMORROW.
SECOND: The place in Ohio where the principal office of the
corporation is to be locatedis Toledo, Lucas County, Ohio.
THQ2D: The corporation is organized exclusively for educational
purposes within themeaning of Section 501(c)(3) of the Intemal
Revenue Code of 1986, as amended, or thecorresponding provision of
any future United States Internal Revenue Law (the "Code") to
operateas a school in the State of Obio. This corporation shall not
engage in activities which are not infurtherance of the educational
purposes set forth in this Article THIRD.
(a) No part of the assets or of the net eatnings of the
corpomtion shallinure to the benefit of any member, tmstee, or
officer-of-thecorporation or any private individual (except that
reasonablecompensation may be paid for services rendered to or for
thecoeporation affecdng onc or more of its purposes). In the event
of theliquidation or dissolution of the corporation, whether
voluntary orinvoluntary, no member, trustee or officer of the
corporation, or anyprivate individual, shall be entitled to any
distribution or division ofthe remaining assets or their
proceeds.
(b) No substantial part of the activities of the corporafion
shall be thecarrying on of propaganda or otherwise attempting to
influencelegislation, nor shall the corporation participate or
intervene
in(includingthepublicationanddistdbutionofstatements)anypoliticalcampaign
on behalf of any candidate for public office.
(c)
NotwithstandinganyotherprovisionintheseArticles,thecoeporationshall
not conduct or carry on any activities not permitted to beconducted
or carried on by an organization exempt under CodeSection
501(c)(3), or by an organization, contributions to whieh
aredeductible underCode Section 170(c)(2), or corresponding
provisionsof any subsequent federal tax laws.
J. HENNE(H BtACMNELLSECRETARY OF STATE
RECEIVEDFEB 11 2000
Page 2Relator's Exs. 0003
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poc ID --> 200004000112
^ '. HIFfH: The names and addresses of the persons who are
appointed to act in thecapacity of the Initial Tmstees of this
corpomflon until the selection of their successors are
asfollows:
Name Address
Donald F. Wibl 3281 Darraq Cr., Columbus, Ohio 43223
Clyde Card 2500 Lytham Rd., UpperArlington, Ohio 43220
Sherri Dembinski 1044 S. Brinker Ave., Columbus, Ohio 43204
David Brailsford 913 Madison Ave., Toledo, Ohio 43624
Diane King 3255 Winding Creek Dr., Columbus, Ohio 43223
SIXTH: In the event of the dissolution of the corporation, the
corporation shall, afterpaying or makingprovision for the payment
of all liabilities of the corpomtion, dispose of all of theassets
of the corporation exclusively for the purposes set forth in
Article THIRD of these Articlesof Incocporation.
IN Wl'INESS WEiEREOF, I have hereunto subscribed my name on
Pebruary2- 2000.
2
Page 3Relator's Exs. 0004
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Doc ID --> 200004000112
DATE DOCUMENTNO DESCRIPTION FILING EXPED PENALTY CERT COPY1.
2122/2000 200004000112 ARN UOMESTICARTICLES/N0N-PROFIT 25.00 1000
000 0.00 0.00
TOTAL 25.00 1000 0.00 000 0.00
Return To:CORPORATE SERVICES OF OHIO, INC.50 W BROAD ST, STE
1120COLUMBUS, OH 43215-0000
The State of Ohio
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STATE OF OHIO
COUNTY OF CUYAHOGASS: AFFIDAVIT
Affiant, DEENA M. GIORDANO, being first duly sworn according to
law, does hereby
depose and state as follows:
1. At all times relevant, I was employed by ECOT in the role of
General Counsel,during which time several discussions with
Supportive Solutions representativestook place.
2. ECOT did not contract with Supportive Solutions for related
services.
a. In September 2007, during a telephone conversation with
Yvette Ford, Iinformed her that ECOT will not contract with
Supportive Solutions forrelated services as ECOT discovered several
deficiencies in students' IEPsinvolving students referred to ECOT
by Supportive Solutions.
b. I informed Yvette Ford that it had come to ECOT's attention
that SupportiveSolutions was under investigation from the Ohio
Department of Education(ODE) which was an additional reason ECOT
decided not to contract withSupportive Solutions for any potential
related services.
3. ECOT cannot expend federal funds for related services not
provided for in astudent's IEP.
a. As required by law, a school is responsible for providing a
free andappropriate public education (FAPE). This includes
providing instruction inthe typical areas of math, reading,
science, writing, etc. If a student has beendetermined to have
special needs, the school additionally becomesresponsible for
providing services only for those areas that impede ]eamingof the
core subjects mentioned above. These services occur either
throughthe school or through a related service provider and only
pursuant to anindividual education plan (IEP).
i. For example, if a child is born with a hearing impairment,
the childmay require cochlear implants andlor speech therapy in
order tofunction better in the classroom and in order to understand
andcommunicate the subjects learned.
ii. A school is only responsible for providing and paying for
extraservices if the service relates to an impediment to learning
the coresubjects, and if the service is listed on a student's (IEP)
which isdeveloped by the school in conjunction with the
parents.
b. Supportive Solutions claim payment for "Anger Management
Assessments",and twelve sessions of "Anger Management Services" for
EIGHTY-EIGHT
Itelator's Exs. 0007
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students, "Social Work Services" for FORTY-TWO students,
and"Transportation" for an unidentified amount of students.
i. ECOT did not contract for anger management services with
anyprovider since these services were not required on any students'
IEP.
ii. Anger management would not be a service normally contracted
foranyway since it does not relate to a student's ability to leam
the coresubjects that schools are required to provide.
c. ECOT is required to serve incoming students under their prior
IEP until itcreates a new IEP (within 30 days of admission).
d. Of the ONE HUNDRED THREE (103) incoming students that
wereassociated with Supportive Solutions and were identified as
allegedlyrequiring special needs, only NINE of them required
related services.
i. Of thepine, ZERO required anger management services, social
workservices, or had a provision for transportation on their
IEP.
e. When ECOT created new IEPs within the 30 day timeframe that
compliedwith federal laws, only TWO students required related
services.
i. Neither student required anger management or social work
services;rather, these students required occupational and speech
therapy;
ii. Neither student availed themselves of the related services
becauseone student withdrew and the other parent declined
services.
f. ZERO students required related services; specifically, anger
management,social work, or transportation) through either their
incoming or ECOT-created IEP.
4. ECOT has secured an expert report from Brunstein &
Manasevit datedDecember 22, 2009 which is attached.
FURTHER AFFIANT SAYETH NAUGHT.
DEENq.M-: IORDANO
SWORN TO BEFORE ME and subscribed in my presence, this go day of
January 2010.
JOHN A. DEMER Attorney at LawNOTARY PLI6LIC STA(E OF OHIO
My Commission Has No Expiration DateSection 147.03 RC
Relator's Exs. 0008
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&JtJRUSTEINANASEVIT
ATTORNEYS AT LAW
December 22, 2009
Deena Giordano, General CounselElectronic Classroom of
Tomorrow3700 S. High Street, Suite 98Columbus, OH 43207
Dear Ms. Giordano:
3105 South Street, NWWashington, DC 20007
phone 202.965.3652{ax 202.965.8913
email brumanQbrumcn.comwww.bruman.com
Re: Supporting Solutions, LLC v. ElectronicClassroom of
Tomorrow, et al.Cuyahoga County Common Pleas CourtCase Number: CV
08 652873
You have requested that I provide a report as an expert witness
on the allocation and allowable
uses of federal funds under the Individuals with Disabilities
Improvement Act (IDEIA) in
connection with the above-captioned litigation.
Federal funds to support special education and related services
are primarily provided by the
Individuals with Disabilities Improvement Education Act
(IDEIA),1 Part B Grants to States.
IDEIA provides funds to eligible local educational agencies
(LEAs) through a specific funding
formula. The Electronic Classrooms of Tomorrow (ECOT) is an
eligible LEA under IDEIA.
The funding formula is applied on a State-by-State basis by the
State educational agency (SEA).
In Ohio, the SEA is the Ohio Department of Education (ODE).
Specifically, IDEIA Part B
Section 611 grants are allocated by ODE, as the SEA, to LEAs
through a three part formula
wluch includes a base payment, population payment and poverty
payment.
IDEIA LEA Funding Formula
Base Payment
Public education in Ohio comprises both traditional LEAs and
conununity LEAs. Traditional
LEAs include physical school districts or the more historical
"brick and mortar" LEAs, while
cotnmunity LEAs include virtual LEAs, like ECOT.
1 On July 1, 2005, the Individuals with Disabilities Educa6on
Act (IDEA) was reauthorized and re-titled the
Individuals with Disabilities Education Improvement Act
(IDELS).
Relator's Exs. 0009
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IDEIA, Part B Allocation LetterPage 2 of 4
ODE must first calculate the base payment for each LEA. See 20
U.S.C. § 1411(a) and (d); 34
C.F.R. § 300.705. Base payments are initially calculated based
on what the LEA would havereceived for fiscal year 1999, if the
State had distdbuted seventy-five percent of its grant for
thatyear. If a new LEA is created and the 1999 data does not exist,
then the SEA calculates a basepayment adjustment for the new LEA.
Community LEAs in Ohio are newer LEAs that do not
have 1999 data. Therefore, ODE calculates community LEAs' base
payments, includingECOT's base payment, by multiplying the State
per pupil allocation amount by the number ofeligible children with
disabilities served by the LEA. Currently, ODE calculates ECOT's
basepayment using the most recent December 1st child with
disability count (Imown as thecommunity school average daily
membership (CSADM)), which is reported to the Office ofSpecial
Education Programs at the U.S. Department of Education. The current
CSADM data isDecember 1, 2008. ODE then multiples that number by
the annual per pupil allocation to create
ECOT's base payment.
Population and Poverty Calculation
The remaining IDEIA Part B funds are allocated through
population and poverty counts. Eight-five percent of the remaining
funds are allocated using the relative number of children
enrolledin public ECOT, ages 6-21. The fmal fifteen percent is
allocated based on the relative number of
children enrolled in ECOT living in poverty, as determined by
ODE. See 20 U.S.C. § 1411(a)
and (d); 34 C.F.R. § 300.705.
Funds are not allocated based on services provided, costs
inciuxed, anticipated services or
anticipated costs. Rather the funding formula is applied and
ECOT is allocated its grant amountcalculated under that formula.
Under the law, these funds must be spent only as detailed in
the
following sections.
Use of IDEIA Allocated Funds
Student Elfgibility
Once funds are allocated to ECOT, ECOT must spend the IDEIA
funds only on specialeducationand related services for students
identified as children with disabilities under IDEIA.
IDEIA contains very specific definitions in this area. A child
with a disability means a child
having mental retardation, a hearing impairment (including
deafness), a speech or languageimpairment, a visual impairment
(including blindness), a serious emotional di'sturbance (referredto
in this part as "emotional disturbance"), an orthopedic impairment,
autism, traumatic braininjury, an other health impairment, a
specific learning disability, deafblindness, or
multipledisabilities, and who, by reason thereof, needs special
education and related services. Thedefinition may also include
children aged three through nine experiencing developmental
delays,
as determined by the State. See 20 U.S.C. §§ 1401(3); 1401(30);
34 C.P.R. § 300.8. Note there
are two parts to the definition. The child must have at least
one of the enumerated disabilities,
Relator's Exs. 00010
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1DEIA, Part B Allocation LetterPage 3 of 4
but that alone is not sufficient. As result of the disability
the child must need special education
and related services.
TDEIA is very procedurally restricfive in regard to the
activities that must occur before a child
receives services. To determine whether a child is an eligible
student, the child must beevaluated in accordance with specific
requirements2 and a multidisciplinary team (MDT) reviewsall
evaluations to determine whether the child meets the eligibility
criteria under IDEIA as a
child with a disability. See 26 U.S.C. §§ 1401(3 and (30); 34
C.F.R. § 300.8. The MDT must
include a group of qualified professional and the parent of the
child. See 20 U.S.C. §§
1414(b)(4) and (5); 34 C.F.R. § 300.306.
Allowable Expenditures
If determined eligible by the IvIDT, an individualized education
program (IEP) outlining the
special education and related services required to provide the
student with a free and appropriatepublic education (FAPE) is then
developed. A FAPE means special education and relatedservices that
are provided at public expense, under public supervision and
direction, and without
charge that meets State standards, and are provided in
conformity with an IEP that meets the
requirements of §§ 300.320 through 300.324. See 20 U.S.C. §
1401(9); 34 C.F.R. § 300.17. An
LEA must reevaluate a student that.is determined eflgible under
IDEIA every three years; unlessthe LEA and parent agree that a
reevaluation is not required. Additionally, a parent may requesta
reevaluation at anytime; however, an LEA will not violate a
student's right to FAPE if it
refuses to conduct a reevaluation more than once in a school
year. See 20 U.S.C. §§ 1414(a)(2);
34C,F.R. § 300.303.
Special education ineans specially designed instruction, at no
cost to the parents, to meet theunique needs of a child with a
disabillty, including- (i) instruction conducted in the
classroom,in the home, in hospitals and ittstitutions, and in other
settings; and (ii) instruction in physicaleducation. Special
education inoludes each of the foll.owing, if the services
otherwise nieet therequirements of this section- (i)
Speech-language pathology services, or any other relatedservice, if
the service is considered special education rather than a related
service under State
standards; (ii) Travel training; and (iii) Vocational education.
See 20 U.S.C. § 1401(29); 34
C.F.R. § 300.39.
Related services means transportation and such developmental,
corrective, and other supportive
services as are required to assist a child with a disability to
benefit from special education, andincludes speech language
pathology and audiology services, interpreting services,
psychologicalservices, physical and occupational therapy,
recreation, including therapeu6c recreation, earlyidentificatian
and assessment of disabilities in children, counseling services,
includingrehabilitation counseling, orientation and mobility
services, and medical services for diagnosticor evaluation
purposes. Related services also inciude school health services and
school nurse
2 5ee 20 U.S.C. § 1414; 34 CF.R §§ 300.304 through 300.311
Relator's Exs. 00011
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IDEIA, Part B Allocation LetterPage 4 of 4
services, social worlc services in schools, and parent
counseling and training. See 20 U.S.C. §
1401(26); 34 C.F.R. § 300.34.
The IEP team creates the IEP and detemtines the appropriate
level of special education and
related services required to provide the child with a disability
a FAPE. An IEP team mustinclude someone from each of the following
categories: parent(s), LEA representative, generaleducation teacher
if the child is participating in the general education setting, a
special education
teacher if the child is participating in special education, and
related service providers. See 34
C.F.R. § 300.321. Once members are identified, the team meets to
develop the IEP. IEPsprovide the consent required to provide
services to students. Therefore, after the IEP isdeveloped by the
team, the IEP must be signed by the parent or authorized
representative underIDBIA so that the LEA may begin to provide the
agreed upon special education and relatedservices. The IEP must be
reviewed and updated on an annual basis by the IEP team. IDEIA
includes very specific regulations regarding whether a meeting
may be help without a requiredmember and the steps that an LEA must
take to hold a meeting without a required member,
including the parent. See 20 U.S.C. § 1414(d); 34 C.F.R. §§
300.321 and 300.322(d).
Additionally, IDEIA states that amendments to IEPs may be made
without a formal revision ofan IEP as long as the LEA aud parent
agree; however, the LEA is required to redraft a new IEP
at the request of the parent.
Once the IEP process is complete the special education and
related services for all eligible and
participating children with disabilities are specifically
described in each child's IEP.. IDEIAfunds are provided to LEAs to
pay for those special education and related services in the IEPs.
Itis an unallowable use of IDEIA fimds to spend IDEIA money on any
other special education and
related services because there would be no benefit to the
program, which means the cost would
not be allocable to IDEIA. See Education Department General
Administrative Regulations
(EDGAR) 34 C.F.R. § 80.32; Offioe of Managemerit and Budget(OMB)
Circular A-87: 2 C.F.R.Part 225, Appendix A, Section C. Therefore,
even if services meet the definition of related
services, it is an unallowable use of IDEA funds if those
services are not included in the IEP of
an identified and eligible child as those services do not
meet.the definition of FAPE. See 20
U.S.C. § 1401(9); 34 C.F.R. § 300.17(d).
Relator's Exs. 00012
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