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FINDINGS OF FACT AND DECISION
| Case Number: | 208738 |
| Student’s Name: | [Redacted] |
| District: | [Redacted] |
| Hearing Requested By: | Parents |
| Hearing Officer: | Martin J. Kehoe III, Esq. |
| Actual Record Close Date: | March 12, 2026 |
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview
This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2020-2021 school year (“SY”). The Parent filed the complaint notice on June 9, 2021. (Ex. A). I was appointed as the IHO on June 10, 2021. A hearing was held across multiple dates.[1] The Parent introduced exhibits A-L into the record and called two (2) witnesses: the Chief Program Officer at the Private School (“Program Officer”) and the Parent.[2] The District offered exhibits 1-5 and called one (1) witness: the School Psychologist at the District recommended placement (“School Psychologist”).
a. Parent’s Position
The Parent alleges that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”). (Ex. A-1). Specifically, the Parent claims that the District failed to recommend an appropriate program and placement for the Student for the 2020-2021 SY. (Ex. A-4). In the complaint, the Parent notes that the “[District] failed to thoroughly and appropriately evaluate [the Student] on a timely basis and develop a timely, substantively and procedurally valid IEP, and offer him a timely and appropriate placement and services.” (Ex. A-1).
To remedy the above, the Parent seeks reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School during the 2020-2021 SY.
b. District’s Position
While no opening statement was made by the District’s representative, the District called the School Psychologist as a witness to demonstrate the appropriateness of the Committee on Special Education’s (“CSE”) recommended program and placement. (T. 63-82, 88-111).
c. Background of the Case
On February 27, 2020, a CSE meeting was held to develop an IEP for the Student.[3] (Ex. 1).
Following the meeting, the District sent the Parents a Prior Written Notice (“PWN”) and a School Location Letter to inform her of their recommended program and placement for the Student.[4] (Ex. 2).
The Parents responded on June 18, 2020, when they sent the District a ten-day notice letter wherein they rejected the recommendation and notified them of their intent to unilaterally place the Student at the Private School for the 2020-2021 SY. (Ex. D). On June 9, 2021, the Parents filed the complaint notice. (Ex. A).
d. Student History
The Student was [redacted] years old at the start of the 2020-2021 SY. He is described as a friendly child. (Ex. 1-5). The Student has been diagnosed with Autism and REDACTED (Ex. A-2). During the school year at issue, the Student carried a disability classification of Other Health Impairment.[5] (Ex. 1-1). In creating the Student’s IEP, the District relied on a psychological evaluation, dated April 15, 2018, in which the following data was taken:
[The Student] achieved a FSIQ of 82 on the SB-V, which is Low Average. His Nonverbal IQ is Low Average and his Verbal IQ is Borderline Deficient. There was significant scatter between various subtests, indicating inconsistent functioning across the cognitive capabilities measures. [The Student’s] area of greatest relative strength is on the Working Memory factor, which is the ability to acquire and store diverse information in short term memory. His area of greatest relative weakness were on the Knowledge factor, which is the ability to accumulate a fund of general information acquired at home. The Nonverbal Working memory subtlest was found to be significantly and practically higher than the other subtests. This may show that [the Student] has a relative strength in retaining and sorting through visual information in short term memory. His Nonverbal Knowledge sub-test was found to be significantly and practically lower than the other sub-tests. (Ex. 1-1).
The Student’s IEP includes various tests, all of which the Student scored in the low range. For instance, the IEP notes the Student achieved an Adaptive Behavior Composite score of 62. (Ex. 1-1). It is with this background that I now turn to the legal considerations of the IDEA.
e. Legal Overview
Here is an overview of the legal framework of the Individuals with Disabilities Education Act (“IDEA”).
A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2nd Cir. 2012).
In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007).
If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). See, R.E., 694 F.3d 167 (2nd Cir. 2012).
III. Prong I
a. Did the District Present a Prima Facie Case?
i. Legal Standard
1. Procedural Standard
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
2. Substantive Standard
IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).
To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
ii. Analysis
I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. In the complaint, the Parent maintains that the CSE's program recommendation would not be able to meet the student's needs and is not reasonably calculated to enable the student to receive educational benefits. (Ex. A-3). The Parent also maintains that the IEP was procedurally improper and substantively incorrect and resulted in a defective program recommendation and a denial of FAPE. (Ex. A-3). The Parent claims the IEP was procedurally improper and substantively incorrect for a number of reasons including but not limited to the following:
The [District] failed to develop an IEP that is reasonably calculated to confer educational benefit to the student for the 2020-2021 school year.
Large sections of the Student's IEP were not created by and/or drafted at the IEP The [District] representative who handled the meeting made unilateral decisions.
The [District] did not make decisions based upon [the Student’s] individual needs.
It is not clear that the CSE team was properly composed upon information and belief, the team did not have required members and, if those individuals were present in name/title, they did not possess the required knowledge, training, or independence to properly formulate legal IEPs;
The IEP did not include a sufficient description of [the Student] and his present levels of performance, strengths, and weaknesses across all domains, settings and people. The present levels of performance in each area were not specific and therefore it would be impossible to measure progress with respect to goals
The [District] failed to provide the parent with the opportunity to participate in a meaningful way in the development of this IEP. The [District] failed to consider the information provided by the student's special education providers concerning an appropriate program and class size. The CSE team failed to consider Student's participation with students without disabilities. Under the IDEA, an IEP must contain a statement of the student's present level of academic achievement and functional performance. This statement must contain specific, measurable, individualized information about the student's needs as a result of his or her disability. In the student's case, this type of specific, measurable information is lacking. This also raises the question of whether the CSE has met its obligation to administer the necessary evaluations that could form the basis for the development of an appropriate IEP for the student. The [District] failed to appropriately evaluate this student in all areas of suspected disability. The [District] failed to recommend an appropriate program and placement for the student for the 2020-2021 school year. In addition there is no specific, measurable individualized information in the IEP regarding what the student s functioning and needs are in related service areas. This also raises the question of whether the CSE appropriately evaluated the Student's needs in these areas, as is its obligation. For example, the IEP team failed to develop a functional behavior assessment (FBA) and behavior intervention plan (BIP) with parent participation even though the IEP speaks of the Student's challenging behaviors and how it interferes with his learning and self-esteem. Under the IDEA, an IEP must contain annual goals that are specific, measurable and individualized to the student. In the student's case, the annual goals drafted by the CSE are lacking in this regard. Counseling goals are not based on data collected from a formal assessment; they are generic and not written as a result of observations made of the student during a specific time and with the participation of the Student's parents. The annual goals developed in the student's IEP are not appropriate, sufficiently challenging and tailored to address the unique educational needs of the student resulting from the disability. The IEP's goals were not appropriate or sufficient to address all of [the Student’s] needs and the ways in which his disability impacts his ability to learn and make progress in the curriculum further the goals were vaguely written and did not include clear measurable targets and appropriate evaluation measures. For a student to be offered a FAPE, the program recommendation must allow the student to master the annual goals included on their IEP. The parent maintains that this is not the case here. The parent will assert that the student's IEP cannot be appropriately implemented in the recommended program. (Ex. A.3-4). This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer v. Weast, 546 U.S. 49 at 537 (2005).
The School Psychologist—who participated at the February 27, 2020 CSE meeting, in which the Student’s IEP was created—testified on the District’s behalf. (T. 65). She stated that she was familiar with the Student, in that she knew him to be “a student in one of our schools,” before he transferred to the Private School. (T. 65). When asked why the CSE recommended the program that they did, the School Psychologist replied: Of course. So although he was classified with other health impairment, he does have -- he does carry a diagnoses of -- there's a REDACTED that he had. Also REDACTED. Also difficulties, just overall academic delays. And we felt that in a mainstream school, which is a ten-month program, would not adequately address these needs. So our concern that a student with his disabilities, he would be at risk for regression. Therefore, summer sessions were recommended for him. (T. 68).
The School Psychologist listed the information that was relied upon at the meeting: We -- we had their psychological evaluation that was submitted from the parent -- by the parent from 2018. We had [the Private School] report -- reports. We also had just the verbal feedback that we had during the IEP meeting. And also we had the transition vocational piece that was conducted by our teacher assigned. (T. 68-69). The School Psychologist later stated that the CSE team reviewed the Student’s previous IEP. (T. 100). Regarding the evaluative data, she testified that the psychological evaluation was three (3) years old at the time of the meeting; thus, it was sufficient. (T. 102). The School Psychologist noted that the Student requires “a lot of instruction and -- and vocational training and functional academics. And just overall, he was -- he was in a specialized -- a specialized setting where he was receiving related services and basically needed a lot of support with academic skills.” (T. 70). The School Psychologist stated the Student has deficits, specifically “difficulty with focusing and just his social-emotional deficits and language skills.” (T. 70). She did not say whether she had directly worked with the Student. (T. 70-71).
The School Psychologist testified that the Parent voiced her concerns—specifically that “[The Student] didn’t enjoy reading. It was something that he -- they were struggling and tried to encourage him to do. He had strength in terms of his money management, and he was utilizing a debit card.” (T. 72). Additionally, the Parent voiced concerns regarding the Student’s vocational skills. (T. 72).
When asked about the Student’s goals, the School Psychologist answered: So overall, the goals addressed the student's academic language deficits, physical development concerns, and the social-emotional concerns. It also included the vocational piece, the post-secondary planning, given that, at his age, we always discuss what the plan is for the future. So the goals address all of those areas. (T. 73). Next, the School Psychologist was asked to describe whether the Student should have had a Functional Behavioral Assessment (“FBA”) or a Behavioral Intervention Plan (“BIP”), to which she gave the following response: So it was discussed at the beginning of the IEP, and that's Exhibit 1. And it's page 2. It does indicate when we asked [the Private School] about the current placement and the services the student was receiving, we did ask if the student had a behavior intervention plan in -- in place. And -- and the staff reported that he didn't require behavior intervention at this -- at that -- that point in time. Again, we didn't feel that this was necessary, given that the student did not demonstrate any aggressive or any behaviors that would impede his daily -- or would put him in a crisis, that his behaviors needed immediate attention that would warrant a behavior intervention plan. (T. 74).
The School Psychologist later reiterated that there did not appear to be a need for a BIP, but the Student would have support for class, related services, and management needs. (T. 102-103).
Regarding the Student’s management needs, the School Psychologist had the following to say: So the management needs -- needs are there to really support the teacher and how the teacher can best support the student in the classroom. And those are the suggestions that the teacher needs to really implement in order to ensure that the student is participating to the best of his ability, and using appropriate tools and materials to, again, help him access the curriculum. (T. 75).
On cross-examination, the School Psychologist was asked about the Student’s progress report (Ex. L) and how it impacted the CSE team’s recommendation: Well, you know, it does refer to him having some negative opinions of himself, you know, he tends to kind of perseverate on the negative and had a lot of anxiety about the future, because, you know, he did -- he did only have about a year left of school. So because of that obviously, we felt that there was a need to actually provide him social-emotional support through, you know, the self-contained classroom and also through counseling. (T. 96).
The School Psychologist mentioned that the Student is alternatively assessed. (T. 97). When asked about the functioning level of students at the District Specialized School, the School Psychologist replied: So my understanding is that [the District Specialized School] offers support for students of all disabilities and age groups. So there could be students who have intellectual disabilities, students who have diagnoses, it could be a mixture of students. (T. 97-98).
The School Psychologist was asked if the Parent had any concerns regarding the CSE’s recommendation. She could not recall any concerns and noted that if there were any, they would be stated on the IEP. (T. 98).
Per the recommendation, the expectation was that the Student would transfer to a public school. (T. 103). When asked if the CSE team offered any additional services to help the Student in such a transition, the School Psychologist provided the following response: Well, the student was given counseling and, you know, public schools often have new students, so the teachers and the providers are more than capable of supporting students in their transition. (T. 103).
The School Psychologist claimed that the recommended program allowed for mainstreaming opportunities. (T. 105). When asked if there were any post-school transition or future plans for the Student, the School Psychologist stated: Of course. As -- as shown on Exhibit 1, page -- usually it's page, let me just clarify -- it starts on page 3 and -- and goes through page 4, there's a vocational piece, a transition interview that's conducted by -- by our teacher assigned, and we talk about what the plan is for the future, what the parents are hoping for, so there's definitely a component of that. (T. 106).
I believe my teacher assigned will -- after the meeting, will offer along with the transition piece, that's on that interview piece that she writes up on a separate piece of paper. She also submits -- provides the parents with a list of outside resources. (T. 107). The School Psychologist clarified that this transition interview took place at the meeting. (T. 107).
This concludes the School Psychologist’s testimony in support of the CSE’s recommended program and placement. After review of the IEP and consideration of the School Psychologist’s testimony, I find that the District has presented a prima facie case: the Present Levels of Educational Performance (PLEPs) seem to reflect the Student’s attributes, the goals and objectives speak to the Student’s areas of concern, and the recommended program is designed to encourage more than trivial progress. [6]
After examining the record and hearing the testimony given, however, I find that the Parent successfully opposed the District’s case. Specifically, the parent identified the need to view the School placement and testified credibly that she was unable to do so. I will outline this finding below.
The Parent testified that she placed her son at the Private school after attending the operative CSE meeting (T. 176) and receiving a school location letter late in the year. (T. 176). She testified that she was “very interested” in evaluating the school and she promptly and persistently called the public school in an attempt to set up further investigation. (t 176-177) She left multiple messages but no one called her back or otherwise responded. (T. 176). Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y., 584 F.3d at 419; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct 29, 2014]).
In this case the Parent was able to articulate a valid concern that the fit between the proposed placement and the “very very unique” (T. 177) attributes of the Student justified her involvement in reviewing the District’s placement decision. She explained that the problem with going to a District program that is “established” is that there is little flexibility to accommodate the uniqueness of the Student. She gave an example:
2 [District Question:] So can you tell me what kind of a program could
3 have been offered at public school that would meet
4 the needs for your son?
5 [Parent:] A program that is not set in
6 stone, that would work with a child based on where
7 he's strong and where he's weak. I have -- I have
8 visited a lot of schools that day. And in the 9 past, every year that I offered something, I went
10 and I visited and I took it very seriously because
11 I always was looking for the right place for him.
12 I'll give you an example. There was a program.
13 They were very proud of their vocational. And, you
14 know, they -- they did mostly, let's say, in the 15 kitchen. And what they were strong about, let's
16 say, taking -- teaching the children how to work in
17 a laundromat.
18 My [son] is very weak in his upper
19 extremities. He still has a hard time even cutting
20 an apple for him. So if the program, let's say,
21 was concentrating on kitchen cutting and cooking,
22 obviously he cannot even cut an apple right now.
23 To this day, you know, I have to stand there with a
24 very sharp knife – (T. 182)
The Parent continued:
[Parent:] -- and still work with him.
2 So -- so again, when you're going to a program
3 where everything is very -- it's -- it's already
4 established and there's no room to maneuver and 5 they're not really working with you, that's not
6 going to work for [the Student]. It would be a waste of 7 time for him. (T. 183)
Permissible prospective challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).
In this case the Parental concern was directly tethered to the IEP and the future programming of the Student. The IEP explicitly delineates long term goals for living, working and learning as an adult. (Ex1-9) Likewise the parental placement included the [redacted] program dealing with the development of transitional skills. (Ex. B, T. 181)
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.
IV. Prong II
a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
i. Legal Standard
Having determined that the District failed to offer the student a FAPE for the 2020-2021 SY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated: . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
The Program Officer—who also is a Certified Special Education Teacher, a Board-Certified Behavior Analyst (“BCBA”), and a New York State Licensed Behavior Analyst—testified on the Parent’s behalf. The Program Officer provided a brief description of the Private School: [The Private School] is a school for students with special needs serving students aged 11 to 21 with a wide range of disabilities and diagnoses. We offer a variety of class sizes ranging from a 6:1:3 to a 12:1:1. Our therapeutic services include speech, OT, PT, behavior analysis and counseling. We offer a vocational program in which students have one to one job coaches who take students out into the community for hands-on internships. Kulanu offers instruction for 12 months each school year for those students who require 12-month programming. (Ex. IHO #1-1).
The Program Officer testified that the Private School has a “wide range of students with various diagnoses,” including autism. (Ex. IHO #1-2). She then went into the specifics regarding the teachers and classrooms: [The Private School’s] supervisory structure is developed to afford teachers maximum support in addressing the needs of their students. Within each classroom there is a head teacher and support staff including paraprofessionals and /or teacher assistants. The teacher is the direct supervisor of the ancillary staff and directs their activities and provides constructive feedback. Every classroom is assigned to an educational supervisor who works directly with the classroom teacher. The educational supervisor regularly observes the classroom, provides supervision and feedback to the teacher accordingly, assists the teacher in planning curriculum, brainstorming interventions and offers support and professional development. The educational supervisor works directly under the Head of Schools who provides supervision, guidance, and feedback to the educational supervisor in a similar fashion. [The Private School] employs Special Education teachers with NYS certification. (Ex. IHO #1-2).
The Program Officer noted that the Private School offers speech therapy, occupational therapy, physical therapy, Applied Behavior Analysis (“ABA”), and counseling.[7] (Ex. IHO #1-2). She also mentioned that the Private School offers vocational services, which allows students to go into the community with one-on-one job coaches to get hands-on experience within a vocational internship. (Ex. IHO #1-2). Additionally, the Private School offers academic support, allowing students to work one-on-one or in small groups with a teacher. (Ex. IHO #1-2). The Private School utilizes software which is geared to each student’s level of performance, and collects data which is shared with the teachers. (Ex. IHO #1-2). The Private School also offers adaptive physical education. (Ex. IHO #1-2). Regarding the class size, the Private School offers a 6:1:3, 8:1:1, and 12:1:1. (Ex. IHO #1-2). While the Private School does not typically employ outside consultants, they work with members’ of the students’ teams. (Ex. IHO #1-2).
The Program Officer stated that she is familiar with the Student, who was enrolled in a class composing of seven (7) students of similar needs, with a main teacher, an assistant, and a paraprofessional. (Ex. IHO #1-3). Throughout the school year at issue, the Program Officer observed the classroom and the Student’s progress reports. (Ex. IHO #1-3). She noted that the Student “demonstrated significant progress in all areas throughout the school year, with significant improvement noted in his self-advocacy skills and self-image.” (Ex. IHO #1-3). She provided an example for the record: [The Student] actively advocated for the opportunity to go out in the community independently for lunch through setting up meetings with school administrators, and negotiating conditions with the recognition of the need to maintain safety precautions. Throughout this lengthy process, he demonstrated improved communication skills, self regulation and frustration tolerance, as well as an improved and realistic view of himself and his worth. These are all areas that had been targeted for improvement throughout his school program. (Ex. IHO #1-3).
The Program Officer mentioned that the Student suffered from low self-esteem and struggled with social interaction, which impeded his ability to learn at the start of the school year. (Ex. IHO #1- 4).
In response to these impediments to his learning, [the Private School] provided [the Student] with counseling and speech services, which addressed his interpretation of social cues, as well as his self-esteem. Additionally opportunities to learn and experience success in areas outside of the academic realm, which could be a challenge for him, were offered to further improve his self-esteem. For example, his participation in Culinary Arts and CDOS courses allowed him to experience success and prove to himself that he is a capable young man. Part of the CDOS course objectives required [the Student] to identify and communicate his strengths, skill sets, characteristics, and qualifications, as well as engage in public speaking. These activities contributed greatly to [the Student’s] improved sense of self and confidence. (Ex. IHO #1- 4).
As [the Private School] is located near many restaurants, students are generally encouraged to go into the community with their [school] classmates, as well as with neuro-typical peers from a neighboring general education high school. Faculty shadow students as needed. This community based experience allows students to practice the skills taught within the classroom including social skills, communication, budgeting, money math, and safely navigating their environment (travel training). (Ex. IHO #1-4).
Regarding the Student’s individualized program, the Program Officer testified: [The Student] had vocational instruction during the 2020-2021 school year, in the form of a classroom based course, using the NYS CDOS curriculum … In the 2020-2021 school year, [the Student] participated in classroom based CDOS instruction. Some targeted goals included self-advocacy, problem solving, as well as preparing for workplace occurrences, such as what to do when you will be late to work or have an issue with a co-worker. [The Student] demonstrated progress across all areas throughout the year. [The Student] received related services during the 2020-2021 school year including counseling individually twice weekly, Occupational therapy individually twice weekly, Speech in a group once weekly and individually twice weekly, and physical therapy individually twice weekly. (Ex. IHO #1-4).
The Program Officer described the ways in which the Private School monitors progress, and how they communicate said progress the students’ parents. (Ex. IHO #1-5). The Student’s mother testified that she communicated with the Private School on a weekly basis. (T. 179). Regarding the progress that the Student made throughout the year, the Program Officer had the following to say: In my professional opinion [the Private School] offered [the Student] an appropriate special education for the 2020-2021 school year. [The Student] was offered a functional academic curriculum at his instructional level, and within a class of appropriate social and academic partners. His therapeutic needs were met through consistent therapy sessions, with licensed providers, who addressed his specific areas of weakness, in collaboration with [the Student’s] teaching staff. As [the Student] was most likely to seek employment after high school and he was provided with vocational studies, under the guidance of a teacher seasoned in vocational studies, to best prepare him for his future. [The Student] responded to this program with success and shared that he has never been in a school that took him seriously, and provided him with chances to prove himself. He shared that he felt respected for the first time, and demonstrated great emotional growth throughout the school year. (Ex. IHO #1-5).
The Parent’s also spoke briefly to the propriety of the Private School. First, she recounted the related services provided by the program (T. 188) and went on to discuss the benefits she credited to the flexible program at the Private School. (182-184).
iii. Conclusion
In addition to considering the testimony and observations of the Program Officer and the Parent, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record.
I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parent’s exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parent has met her burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
V. Prong III
a. Legal Issue: Did the Parents Cooperate with the District?
i. Legal Standard
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[8]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
ii. Analysis
The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2020-2021 SY. (Ex. D-1). In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. D-2).
iii. Conclusion
Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED
For the District to reimburse/directly pay the Parents for cost of tuition at the Private School, where they unilaterally placed the Student for the 2020-2021 SY.
Dated: March 12, 2026
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.
Footnotes
[1] A hearing was held across the following dates: January 24, 2022; March 9, 2022; May 11, 2022; June 8, 2022; August 11, 2022; December 6, 2022; January 6, 2022; January 11, 2022; March 1, 2023; April 25, 2023; May 18, 2023; June 8, 2023; July 6, 2023; July 26, 2023; August 2, 2023; and August 30, 2023.
[2] The affidavit of the Program Officer is included in this record as Exhibit IHO #1.
[3] The CSE team recommended the Student be placed in a 12:1+1 special education class at a District Specialized School, with the inclusion of the following services: Adapted Physical Education (3 x weekly); Counseling Services (Individual, 2 x 40); Occupational Therapy (Individual, 2 x 40); Physical Therapy (Individual, 2 x 40); and Speech-Language Therapy (Individual, 2 x 40); and Speech-Language Therapy (Individual, 1 x 40). (Ex. 1.19-20).
[4] The Prior Notice Package does not appear to be included in the record. The District offered Exhibit 5; however, this letter preceded the CSE meeting. The Parent testified that she did receive a Prior Written Notice. (T. 152).
[5] 8 NYCRR Part 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student's educational performance.
[6] A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed. Dep’t Rep 487 (1983). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. 300.550(b); 8 NYCRR 200.6(a)(1). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep’t. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.
[7] The Parent testified that the Student received speech therapy, occupational therapy, physical therapy, and counseling. (T. 188).
[8] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))