New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536533 - NYC: 193424

Background

Parents, “Petitioners” bring this action under the Individuals with Disabilities Education Improvement Act of 2004 ("IDEA") and Section 504 of the Rehabilitation Act of 1973 on behalf of their REDACTED, “Student”. The Student is classified by the New York City Department of Education (the "district" or "DOE") as a student with "Other Health Impairment") (Exs. A-1, Q-1). He has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD") (Id.). As a result, he is entitled to receive a free, appropriate public education (FAPE) for the 2019-20 school year, pursuant to the IDEA. 20 U.S.C. 1400 et. seq.; 34 C.F.R. 300.l0l(a). The Department of Education “DOE” did not offer any testimony nor documentary evidence in support of an argument that it offered FAPE to the Student for the 2019-20 school year (Tr. 14-19). The DOE stated that it was challenging the appropriateness of Petitioners' unilateral placement of their son at REDACTED (Tr. 18).

The DOE declined to present any testimonial or documentary evidence in support of a case-in-chief, the district necessarily cannot, and has not, met its burden of proof to show that it offered the Student a FAPE for the 2019-20 school year (see transcript generally). Additionally, the DOE failed to present any testimonial or documentary evidence to allege that Petitioners failed to cooperate with the district, or allege in its closing argument that Petitioners failed to cooperate with the district in any way (Tr. 14-19, 47-48).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The Student is REDACTED-years old and has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD") (Exs. A-1, Q-1). The DOE classified the Student as a student with "Other Health Impairment" (Exs. A-1, Q-1). The Student presents with impulsivity and hyperactivity (Exs. A-1, A-2, Q-1, P-2). He also has severe attentional deficits, as well as deficits with sensory processing, expressive and pragmatic language, fine motor skills and executive functioning (Exs. A-1, A-2, Q-1). the Student is easily distracted and without proper supports, he will engage in negative behaviors, including non-compliance and disrespectful behaviors (Ex. A-1, A-2, P-2). That behavior takes him off task in school and disrupts his learning and the learning of other students in his class (Id.). He also has difficulty respecting boundaries and rules and will struggle with appropriate peer interaction (including manipulating his peers and distorting the truth) (Id.). Due to these issues, the Student needs a small classroom environment, constant adult feedback and structured individualized behavior support to manage his behavior, keep him on task, and regulated so he can access curriculum and learn skills (Ex. A-4, P-2, P-5).

The Affidavit of Testimony of the Student’s mother, dated September 9, 2020, describes the Student’s early development and education and events leading up to the 2019-20 school year (Ex. Q). Petitioners first suspected that the Student may have special needs when he was eighteen months-old due to sensory and feeding issues and head banging behavior (Ex. Q-1). Petitioners had the Student evaluated for Early Intervention Services and he was approved to receive home based occupational therapy, speech therapy and special education (Id.). the Student was diagnosed with ADHD when he was approximately 3 years old (Id). the Student was then approved by the DOE to receive special education itinerant teaching ("SEIT") services while he attended pre-school (Id.). the Student began kindergarten (the 2012-2013 school year) in a small general education setting, where he received occupational therapy pursuant to a DOE Individualized Education Service Plan (Id.). During the 2014-2015 school year he also received counseling services. As the years progressed, the Student required a full-time special education placement (Id.). By the 2015-2016 school year, the Student was frequently taken out of the classroom due to problem behaviors and often ran away from school staff. (Id.) The Student was struggling in the general education setting so much that he was asked not to return to school (Id.). Since 2016, the Student has attended his current school, the REDACTED ("REDACTED") school, pursuant to agreements with the DOE (Id.).

Leading up to the 2019-20 school year, the DOE did not conduct any evaluations of the Student, before scheduling an IEP meeting (Ex. Q-2). Furthermore, the DOE has not conducted any evaluations of the Student since 2016 (Id.). The CSE did not conduct any evaluations in areas the Student struggles, such as evaluations of his attention skills, his impulsive behavior, social-emotional functioning or his fine motor or graphomotor skills (Id.).

During the June 6, 2019 IEP meeting, the CSE staff members recommended that THE STUDENT attend an integrated co-teaching class ("ICT") in a community school - a class with two teachers and 25 to 30 students, some of whom have IEP's and some who do not (Ex. Q-2). The staff from REDACTED that attended the June 6, 2019 IEP meeting by telephone stated that they believed the ICT class was much too large for the Student - he would be very distracted and would have great difficulty in regulating himself (Ex. B-1, C-1, Q-2). Similarly, Petitioners did not believe that the Student -staffing ratio of the ICT class would provide the Student with enough support to keep him on task (Id.). Despite this the CSE did not change their recommendation (Ex. Q- 2).

After the meeting, Petitioners received an IEP, dated June 6, 2019, in the mail, which recommended that the Student attend an ICT class for ELA, math, science and social studies, and that he rec eive counseling and occupational therapy related services (Ex. Q-2). The June 6, 2019 IEP acknowledges Petitioners' concern as it states that at the IEP meeting, an ICT class was considered by the IEP team but "was rejected as too large setting to address the Student 's delays. It is felt his needs can be best address in a small structured self-contained" special class (Id.). Petitioners informed the CSE of this issue in two different letters, one on August 21, 2019 and in a second letter, dated November 20, 2019 (Exs. B, C, Q-2).

Over the Summer of 2019, Petitioners received a DOE School Location Letter informing them that the CSE was recommending that the Student attend an ICT class in DOE nonspecialized school at REDACTED: REDACTED ("REDACTED ") (Exs. B-1, C-1, Q-3). On August 21, 2019, Petitioners wrote to the CSE to express their concerns regarding the CSE's recommendations in the June 5, 2019 (Ex. B, Q-3). Petitioners contacted REDACTED to schedule a visit to determine if it could implement the IEP (Id.). School staff informed Petitioners that the school did not have any ICT classes, and that the building that would house the school was under construction and that Petitioners would not be able to visit until the end of August (Id.). The Petitioners enrolled the Student at REDACTED for the 2019-20 school year, but informed the CSE that they were still considering the proposed placement and would contact the CSE once they had the information needed to make an informed decision (Ex. B, Q-3).

After the 2019-20 school year began, Petitioners called REDACTED to find out if the school had an ICT class for the Student and to determine if what they had previously been told by REDACTED school staff in August was still accurate (Id.). At that time, contrary to what Petitioners were told in August, the REDACTED staff told Petitioners that the school had ICT classes (Ex. C, Q-3). As a result, Petitioners tried to schedule a date and time to visit REDACTED through a parent coordinator for the school (Id.). The parent coordinator requested a copy of the School Location Letter, which Petitioners sent to her (Exs. C, Q-3). Petitioners followed-up with parent coordinator, but received no response. (Id.) As a result, Petitioners continued the Student's enrollment at REDACTED(Id.).

Petitioners sent the DOE a letter on November 20, 2019 that reiterated their concerns regarding the June 6, 2019 IEP and described their efforts to schedule a visit of the proposed placement (Ex. C, Q-3). The DOE did not respond to Petitioners' August 21, 2019, or November 20, 2019 letters (Ex. Q-3). On March 31 the Student for the 2019-20 school year (Exs. A, Q-3).

Petitioners entered into an enrollment agreement with REDACTED in which they agreed to pay tuition for the 2019-20 school year (including related services), which totaled $70,000 (Exs. M, Q-3). Petitioners paid $4,500 towards the full tuition and still oweREDACTED$65,500 (Exs. N, Q-3).

The IDEA was enacted to "ensure that all children with disabilities have available to them...a [FAPE] which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C.A. § 1400(d)(l)(A); N.Y. EDUC. LAW. § 4401 (McKinney 2007).

Recognizing that disabilities manifest themselves differently in each student (resulting in unique educational needs), the services and supports listed in an IEP must be custom-tailored to the child and the program must be appropriately ambitious in light of his circumstances... every child should have the chance to meet challenging objectives." Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 999-1000 (2017) (emphasis added).

A school district may be required to pay for private educational services for a student with a disability if the district failed to provide a FAPE to the Student in a timely manner; if the nonpublic school chosen by the parents is appropriate to meet the child's needs; and if there is no equitable bar to recovery. Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370- 74 (1985); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); see 20 U.S.C. § 1415(e)(2); see also 20 U.S.C. § 1412(a)(10)(C)(ii);

N.Y. EDUC. LAW§ 4404(l)(c). In New York State, the district bears the burden of proof (including the burden of production and the burden of persuasion) on all issues in an impartial hearing, except on the issue of whether the parents' unilateral placement is appropriate; the district must meet its burden of proof by a preponderance of the evidence. N.Y. EDUC. LAW§ 4404(1)(c).

To determine whether the school district has met its burden of proof, it is first necessary to consider whether the evidence presented by the school district shows that the DOE complied with the IDEA's procedural requirements. See R.E. v. New York City Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013). Here, the district did not present a case-in­ chief with respect to its FAPE obligations and has not raised any equitable concerns (Tr. 17-19).

The DOE failed to meet its burden of proof in this matter and that it deprived the Student of a FAPE for the 2019-20 school year.

THE RECORD SUPPORTS AWARDING PETITIONERS THE FULL TUITION

RELIEF SOUGHT FOR THE STUDENT’S ATTENDANCE AT REDACTED FOR THE 2019-20 SCHOOL YEAR.

REDACTED appropriately addressed the Student 's needs.

To demonstrate that the unilateral private placement they have selected for their child is appropriate, parents must show that the services provided in the private placement met their child's educational needs. Burlington, 471 U.S. at 370. However, "the standard applied to a parent's private placement is less stringent than that imposed on school authorities when assessing whether the state provided a student with a FAPE." M.W. ex. rel. J.L. v. Bd. of Educ., No. 12 Civ. 1476, 2013 WL 2631068, at *22 (S.D.N.Y. June 12, 2013); see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 187, n.3 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013); Carter, 510 U.S. at 14. Parents only need to show that their chosen placement is likely to produce progress not regression and that it provides "educational instruction specially designed to meet the unique needs of the... child, supported by such services as are necessary to permit the child to benefit from instruction." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The ultimate issue to be decided is whether the placement is reasonably calculated to enable the child to receive educational benefits; no one factor is dispositive in making this determination. Frank

G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (citing Carter, 510 U.S. at 14).

Petitioners presented ample evidence to show that REDACTED had the Student ‘needs during the 2019-20 school year (see generally, REDACTED Program Description, Ex E; Class Schedule, Ex. F; Behavior Plan, Ex. G; REDACTED Distance Learning Plan, Ex. H; Math Progress Report, Ex. I; Social Behavior

Progress Report, Ex. J; Reading, Vocabulary, Spelling and Writing Progress Report, Ex. K; Reading, Vocabulary, Spelling, Writing, Math, Social/Behavior, Counseling, OT, and ST Progress Report, Ex. L; Affidavit of Testimony of REDACTED, Ex. P; Affidavit of Testimony REDACTED, Ex. Q-4; Tr. 41-44).

REDACTED is a special education school designed for students who struggle in mainstream, general education settings, primarily due to behavioral and social challenges (Exs. E, P-1). The school serves students from Kindergarten through the 8th grade (Ex. P-1. P-2). During the 2019- 20 school year it had an enrollment of approximately 50 students (Ex. P-2). the Student has been attending REDACTED since 2016, and thus REDACTED is very familiar with the Student's needs (Ex. P-2). REDACTED is REDACTED current Educational Director at REDACTED(Id.) She served as REDACTED Educational Director during the 2019-20 school year (Id.). REDACTED has a Master's Degree in Special Education (Id.). She is a New York State certified Special Education teacher and oversees all the training and professional development for REDACTED staff (Id.). Prior to assuming the role of Educational Director, REDACTED served as a classroom teacher at REDACTED for many years (Id.).

Each student at REDACTED has an individualized behavior plan. REDACTED works with REDACTED classroom teachers to individualize each student's behavior plan in order to ensure that each student's needs are being addressed appropriately (Id.). REDACTED served in this capacity during the 2019-20 school year (Id.). REDACTED has a master’s degree in Special Education, is a New York State certified Special Education teacher, and was a classroom teacher at REDACTED before transitioning to her current role (Id.).

REDACTED consults with REDACTED in developing behavior plans for its students (Id.). REDACTED is a Board-Certified Behavior Analyst ("BCBA"), a New York State Licensed Behavior Analyst, and a licensed Psychologist (Id.). While REDACTED does not follow a strict Applied Behavior Analysis ("ABA") model, its program is based on this methodology in many ways (Id.).Each student at REDACTED has an individualized education plan (Id.). REDACTED is charged with making sure each student's academic plan is individualized for their needs and that each student is working towards their academic potential (Id.). REDACTED has a master’s degree in Special Education, is New York State Certified as a Special Education teacher and previously worked as a classroom teacher at REDACTED Executive Director (Id.). He is a certified social worker (Ex. P-2).

REDACTED is the Head of School/Principal of REDACTED (Ex. P-1). Mr. REDACTED oversees all aspects of the school's program (Id.). As REDACTED is a small school, he is able to be hands-on with the school's students, teachers and instruction in its classrooms (Id.). Mr. REDACTED has a Master's Degree in Educational Leadership and Administration, and is a certified facilitator for the Research for Better Teaching (which involves observing and analyzing classroom teachers) and the Love and Logic Program (a behavioral program for families, parents, and teachers) (Ex. P-1). the Student attended a class with a total of 6 students, two head teacher and two assistants (Ex. P-2). The two head teachers did not teach at the same time (Id.). One head teacher taught math and science and the second taught ELA and social studies (Ex. P-3). The low student-teacher ratio permitted classroom staff to provide the intensive individualized instruction and behavior management that The Student needed to stay on task and access the school's curriculum (Id.). During the period March 16, 2020 through the end of the 2019-2020 school year in June 2020, the Student received remote instruction in accordance with a Distance Learning Program developed by REDACTED (Exs. H, P-3).

The class the Student was placed in during the 2019-20 school year was chosen for him because it provided him with appropriate social, behavioral, social and academic peers; the other students were all within a one (1) year age range of the Student, and had similar social/behavioral needs and reading and math grade levels that facilitated implementation of individual and class-wide instruction (Ex. P-3).

During the 2019-20 school year, the two head teachers of the Student's class were Redacted and Redacted (P-3). REDACTED has master’s Degrees and holds licenses in Special Education and General Education (Id.). Redacted also holds master’s degrees in Special Education and General Education. (Id.). He is licensed to teach Special Education. (Id.). One of the two teacher's assistants was REDACTED (Id.). Mr. REDACTED is currently enrolled in a Master of Special Education program (Id.). The second teacher's assistant was REDACTED (Id.). REDACTED is a trained ABA clinician, trained in Professional Crisis Management, and is also currently enrolled in a Master of Special Education program (Id.).

Parents' Ex. Fis the daily schedule for The Student's class during the 2019-20 school year. A summary of various components of The Student's instruction during the 2019-20 school year is provided in Progress Reports (Ex. P-3; see Progress Reports, Exs. I, J, K, L). The Reports list target areas, instructional methods, goals and progress in reading, vocabulary, spelling, writing, math, social skills/behavior, counseling, occupational therapy and speech therapy (Id.).

REDACTED' s Affidavit of Testimony and the REDACTED Progress Reports in the record reflect REDACTED thorough understanding of the Student's complex problem behaviors, as well as progress REDACTED has made in managing them prior to, and during, the 2019-20 school year (Exs. J, L, Q, Tr. 41-43). At the start of the 2019-20 school year, the Student presented with the behavioral and social challenges discussed above (see supra, pgs. 2-3; Exs. P-2, Q-1). At that time, REDACTED and REDACTED worked to develop an individualized behavior plan for the Student, with input from REDACTED, to address his behaviors (Ex. G, P-3, P-4; Tr. 41-43). the Student learned points for displaying the following positive behaviors: compliance, participation, asking for help, expressing frustration, ignoring others when they bothered him, conversing with friends, and acts of kindness (Id). He lost points for the following negative behaviors: non-compliance, minor disruption, disrespectful actions, teasing others, destruction of someone else's property, unsafe behavior, and major disruption (Id.).

Additionally, the Student had the opportunity to receive a check (or a "yes") for reaching his goal (obtaining a certain number of positive points each period) (Id.). At the start of the year, a baseline number of points was established (Id.). Once a baseline was established, the goal (the number of points earned each period, each day) was changed weekly, based on a formula, which was then reviewed by the Student's team (the classroom teacher and administration) (Id.). The total number of points the Student earned was based on calculating the net positive and negative feedback he received (Id.). Each week, the total number of points earned each period was reviewed, and he was able to "Cash In" points he earned and receive a reward (Id.). The Student started the 2019-20 school year needing to earn 6 points in order to have a successful period. (Id.) As his behavior improved, a higher net point total was required to have a successful period (Id.) By December 2019, the target had increased to 21 points per period and by March 2020, he needed 34 points per period (Id.).

In ELA, the Student's teachers used the McGraw Hill Wonders Reading/Writing Workshop, Literature Anthology, Cloze Reading Companion Level: 6, and I-Ready Computer Program to instruct THE STUDENT (Exs. P-4, Kand L). The Student made progress in reading, vocabulary, spelling and writing (Id.). For example, the Student developed his ability to: incorporate new vocabulary words in his writing topics; write essays that summarized texts that included key details in sequential order; spell wordsthat contain suffixes -ive, -ige and -ize; spell compound words with accuracy; visualize characters and events by describing them in his own words; complete a graphic organizer while reading to increase his ability to answer critical thinking questions; accurately identify the theme, moral, lesson, or central message of a reading; brainstorm for writing topics; fill out a graphic organizer with a main idea and key details; incorporate adjectives, pronouns, and irregular verbs in his writing with accuracy; analyze and formulate personal opinions on articles and write a formal letter (Id.).

In math, the Student 's instructors used Ready NY CCLS math program and I-Ready computer program to develop the Student 's math skills. (Exs. I, P-4, P-5)). The Ready New York program provided common core instruction and broke down math into simple components which helped the Student learn new skills (P-4). The I-Ready program was helpful in instructing the Student because it has stimulating features that the Student liked and helped him stay focused (Id.). It also provided continuous feedback that enabled the Student's teachers to adapt curriculum accordingly (Id.). During the 2019-20 school year, the Student made progress in a wide variety of areas in math, including his understanding of: ratios; plotting pairs of values in a table on a coordinate plane; solving unit rate problems; applying multiplication of fractions to explain division of fractions; solving word problems involving division of fractions; fluently dividing four digit numbers by two digit numbers; place values of decimals when computing addition or subtraction; working with multi-digit decimals; finding the greatest common factor of two whole numbers less than or equal to 100 and the least common multiple of two whole numbers less than or equal to 12; understanding of positive and negative integers to solve real-world/functional problems; and understanding of positive and negative signs of integers (Exs. I, L, P-4, P-5).

REDACTED also provided the Student with Counseling, Speech-Language Therapy and Occupational Therapy (Exs. P-5, L). The counseling was provided to THE STUDENT by REDACTED individually, once a week for 30 minutes, and once a week for 30 minutes in a group (Id.). The Student developed his ability to cultivate and maintain appropriate peer relationships inside and outside of school and improve his classroom behavior (Id.). THE STUDENT also improved his ability to communicate with his teachers and peers on a socially appropriate level during class and in group play (Id.). He also improved his ability to engage in flexible thinking and to deal with his frustration in an appropriate social manner (Id.).

The Student received individual occupational therapy from REDACTED(Exs. L-6, P-5)).

REDACTED is a New York State licensed occupational therapist (Ex. P-5). She provided individual occupational therapy to the Student once a week for 30 minutes, and once a week for 30 minutes in a group (Id.). The Student received speech and language therapy from Redacted (Exs. P-5 and L-5). Redacted is a New York State licensed speech therapist (Exs. L-5, P-5). She provided speech therapy to the Student once a week for 30 minutes, and once a week for 30 minutes in a group (Ex. P-5). During the Student's OT and speech therapy, the Student made progress in his executive functioning skills, sensory processing and with language comprehension (Exs. L-5, L-6, P-5).

Throughout the 2019-20 school year, the Student 's instructors worked to address his social skill deficits using the Social Thinking curriculum developed by Michelle Garcia Winner (Ex. P-4). All REDACTED faculty have been trained in the Social Thinking curriculum and each classroom teacher, including the Student's taught a daily lesson from Social Thinking during the 2019-20 school year (Id.). REDACTED overseas REDACTED training and implementation of the school's social skills programming in which all students participate (Ex. P-4). He individualizes social skills goals for each student and ensures that REDACTED teachers are addressing the social skills needs of its students on a daily basis. REDACTED is a New York State licensed social worker (Id.)

In addition to classroom instruction of social skills, REDACTED students also practice social skills during real life scenarios outside of the classroom (Id.). During recess, teachers and assistant teachers provide guidance and feedback on an ongoing basis, and students earn points towards their social and behavioral goals; at lunch, faculty members engage students in conversation, role model and teach appropriate social behaviors (Id.). In addition, during the 2019-20 school year, the Second Step program was also used for social skills instruction (Id.). In this program, students are shown pictures and videos, and the scenarios are discussed in order to point out both healthy and unhealthy behaviors (Id.).

The Student's mother saw progress in the Student over the course of the 2019-20 school year (Ex. Q-3).

The Student made progress in learning how to remain focused, control his emotions, and calm himself down when he is frustrated instead of throwing a tantrum (Id.). He also learned new academic skills and improved his social skills (Id.). Petitioners believe REDACTED was an appropriate educational program for the Student during the 2019-20 school year. REDACTED provided the Student with the individualized academic and behavior support he needs to stay on task in the classroom so that he could access the school's curriculum and learn skills. (Ex. Q-4). The school also worked with the Student on his other needs, including teaching him strategies to self-regulate his behavior and improving his social skills (Id.).

In view of the evidence presented at the hearing, and the absence of any contrary evidence or argument by the district that the academic program, behavioral, social-emotional and counseling support, and speech therapy and occupational therapy, that REDACTED provided to the Student was substantively inappropriate or inadequate, I find that REDACTED provided the Student with a program that met his needs and was likely to produce progress, not regression, during the 2019-20 school year. As a result, I find that REDACTED was an appropriate placement for the Student during that school year.

In the district's closing argument during the hearing, it's only request with respect to the relief sought by Petitioners was that any tuition relief awarded by the Hearing Officer to Petitioners be reduced by 25%. That 25% figure was based on REDACTED's testimony that just under 25% of the Student’s instructional minutes each week involve REDACTED studies and that of that, less than half is purely REDACTED; most of the instruction relates to behavior and discipline (Tr. 44-45). The DOE failed to offer any proof that the secular instruction or support provided to the Student in any area, was in any way substantively inadequate.

The DOE has not offered any legal authority in support of its request for any such tuition reduction. To the contrary, there is legal support for Petitioners argument that a student's receipt of some non-secular instruction during a portion of the Student 's school day should not, in and of itself, impact a parent's request for tuition relief. For example, in Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. I (1993). In Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), the Supreme Court stated that the IDEA "...creates a neutral government program dispensing aid not to schools but individual handicapped children." The court further stated that the IDEA has the secular purpose of ensuring that all children with disabilities are offered a free appropriate public education. The remedy of tuition reimbursement is available to all parents under the IDEA who meet the Burlington/Carter criteria. See Burlington, 471 U.S. at 370-74; Carter, 510 U.S. 7. Tuition funding/reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion.

Tuition funding/reimbursement makes parents whole by reimbursing them for expenditures they would not have incurred had their children been offered a FAPE by their school districts. Thus, there is no danger of excessive entanglement of church and state in the payment of tuition reimbursement to parents or in awards of direct funding for tuition obligations incurred by parents.

In addition, a federal district court in New Jersey has specifically held that funding under the IDEA for sectarian school tuition is not in violation of the Establishment Clause. See L.M. v. Evesham Township Bd. of Educ., 256 F. Supp. 2d 290 (D.N.J. 2003); see also Application of a Child with a Disability, Appeal No. 96-14 (analyzing the same issue). An order directing the district the Student 's right to receive a free, appropriate public education by requiring the district to "belatedly pay expenses [for the Student's education] that it should have paid all along and would have borne in the first instance had it developed a proper IEP" and provided an appropriate public school placement for him for the 2019-20 school year. Burlington, 471 U.S. at 370-71.

Equitable considerations support an award of the full relief sought by Petitioners for the 2019-20 school year.

Congress granted hearing officers broad discretion to fashion equitable relief in "light of the purpose of the Act" to ensure that a child with a disability receives a FAPE. Burlington, 471 U.S. at 370-71, see also 20 U.S.C. 1415(i)(2)(C)(iii); Carter, 510 U.S. 7, 16 (1993). If a student is not provided with a FAPE and the placement obtained by the Student 's Parents is appropriate, then a hearing officer may engage in a "balancing of the equities" to determine appropriate relief.

Burlington, 471 U.S. at 367, 374. Tuition funding/reimbursement should be reduced or denied only when a student's Parents "obstruct [] the [DOE's] placement process or its ability to provide [the Student] with a FAPE." See N.R. v. Dep't of Educ. of the City Sch. Dist. of the City of New York, 07 CV 9648 (BSJ), 2009 WL 874061, *6-7 (S.D.N.Y. Mar. 31, 2009).

The Parents fully cooperated with the DOE.

The DOE did not assert any argument that equitable concerns should reduce the relief the Petitioners seek. The DOE has not alleged, nor can it show, that the Parents failed to cooperate with it with respect to creation of an IEP for the Student for the 2019-20 school year. As discussed supra, Petitioners attended an IEP meeting on June 6, 2019 and wrote to the CSE regarding their concerns with the resulting IEP on August 21, 2019 and November 20, 2019 (Exs. B, C, Q-2, Q-3). Petitioners did not receive a response to either of these letters. (Ex. Q-3).

Petitioners were first informed that the proposed placement did not have the recommended ICT program (see discussion above on pages 4-5 above; Exs. B-2, C-2, Q-3). Later efforts to visit the proposed placement after they find found out that the proposed school did in fact have ICT classes were precluded by DOE staff refusal to respond to Petitioners' request to schedule a visit (Id.). As a result, petitioners continued their enrollment of the Student at REDACTED for the remainder of the 2019 - 20 school year.

The purpose of the IDEA's requirement that parents reject a school district's recommendations in writing is to give the district an opportunity to minimize its financial exposure by addressing parental concerns. J.S. v. Scarsdale Union Free Sch. Dist., No. 09-CV-9571, 2011 WL 5925309 (S.D.N.Y. Nov. 18, 2011). In this matter, the Parents notified the DOE on August 21, 2019 and November 20, 2019 that they had concerns about the IEP and placement. (Ex. Band C). The district did not respond to their letters. As a result, the DOE cannot credibly argue that Petitioners failed to act equitably in this case since it squandered the opportunity provided to address their concerns

CONCLUSION

I find that(1) the DOE violated the Student's right to a FAPE for the 2019-20 school year; (2) that REDACTED appropriately addressed the Student 's needs during the 2019-20 school year; (3) that equitable considerations support Petitioners' claims;

ORDERED; that the DOE must reimburse Petitioners $4,500 for tuition that they have already paid to REDACTED for tuition for the Student for the 2019-20 school year;

And ORDERED, The DOE is to payREDACTED$65,500 which is the unpaid tuition balance for the Student 's attendance at REDACTED for the 2019-20 school year.

______________________

HARRIET GEWIRTZ, ESQ

HEARING OFFICER

Dated: November 11, 2020 New York

(All present by video or telephone)

For the Student:

REDACTED

REDACTED, Parent

REDACTED, Witness

REDACTEDN Witness

For the Department of Education:

REDACTED, District Representative

PARENTS’ EXHIBITS

Exhibit

Date

Title of Document

Number of

A 3/31/2020 Impartial Hearing Request 5

B 8/21/2019 Letter from REDACTED to REDACTED, CSE Region 6 3

C 11/20/2019 Letter from REDACTED to REDACTED, CSE 6 3

D 12/5/2019 Letter from REDACTED to REDACTED, CSE 6 2

E 2019-2020 REDACTED School Program Description 1

F 2019-2020 Class Schedule 1

G 2019-2020 Behavior Plan 5

H Undated REDACTED School Distance Learning Program 2

I November 2019 Math Progress Report September 2019 to June 2020 4

J November 2019 Social/ Behavior Progress Report, September 2019 to June 2020 1

K November 2019 Reading, Vocabulary, Spelling and Writing Progress Report, September 2019 to June 2020 5

L June 2020 Reading, Vocabulary, Spelling, Writing, Math, Social/Behavior, Counseling, OT and ST Progress Report 6

M 9/1/2019 REDACTED Enrollment Agreement 1

N 9/8/2020 REDACTED Payment Affidavit 1 0 2018 US Individual Tax Return

2

P

9/9/2020

Affidavit of REDACTED

5

Q

9/9/2020

Affidavit of REDACTED

4

HEARING OFFICER EXHIBITS

Parent’s closing brief 11/11/20forms

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.