New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 211140 - NYC: 000000

Cover Sheet

FINDINGS OF FACT & DECISION

Case No.: 211140

Student’s Name: Redacted (“Student”)

Date of Birth: Redacted

District: Redacted

Hearing Request by: Redacted (“Parent”)

Hearing Dates: 08/17/2022

Actual Record Close Date: 08/31/2022

Hearing Officer: Ned H. Kassman, Esq

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 17, 2022

For the Student:

Redacted

For the Department of Education:

Redacted Department of Education Attorney.

On July 15, 2021 Parent of Student filed a due process complaint (“DPC”) under the Individual with Disabilities Education Act (“IDEA”) [20 U.S.C. §1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (DOE), which was assigned case number 211140. I was appointed as impartial Hearing Officer (“IHO”) on December 6, 2021. The Hearing went forward on August 17, 2022.

Lists of the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding has been extended.

BACKGROUND AND POSITIONS OF THE PARTIES

Student is a Redacted (Ex. A-1). Student’s classification and eligibility for special education services and supports is undisputed by the DOE.

The Parent asserts that the DOE failed to provide Student with a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year because inter alia, the program offered by the DOE was inappropriate for the Student. As relief for the FAPE violation(s), Parent is seeking prospective tuition funding at the Redacted (“School”) for the twelve month program beginning on July 1, 2021 and ending on June 30, 2022 in the amount of Redacted dollars, consisting of tuition in the amount of Redacted dollars and Redacted dollars in related services (Exs. K, L, M).

The DOE appeared at the hearing and introduced eight exhibits as documentary evidence but did not introduce any witness testimony, cross examined two of the Parent’s witnesses made a brief opening statement and submitted a closing brief on three specific issues, sufficiency of Parent’s unilateral placement, the propriety of the ESY program, and payment for the 10% of the program at the unilateral placement, that is dedicated to religious instruction. Parent introduced sixteen exhibits inclusive of three witness’s testimony by affidavit and submitted a closing brief on the three issues set forth above.

FINDINGS OF FACT AND DECISION

Burden of Proof and Evidentiary Standard

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement/prospective tuition for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (N.Y.S. Educ. Law § 4404(1)(c)).

The burden of proof has two components, the burden of production, in which the party with the burden is required to put forth evidence in the form of witness testimony and documentary evidence; and the burden of persuasion, which is a standard of proof that determines the amount of evidence the party shouldering that burden needs to provide in order for a judge to reach a particular determination.

In impartial hearings, the standard of proof is a preponderance of the evidence. See Cerra v. Pawling Cent. Sch. Dist. 427 F.3d 186 (2d Cir. 2005). Under the preponderance of evidence standard, the burden of persuasion is met when the party convinces the fact finder that there is a greater than 50% chance that the claim is true.

In the context of a claim for tuition reimbursement, a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G v. Bd. Of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. Of Hyde Park Cent. School Dist. v. Frank G., WL 2982269 [Oct 15, 2007].

Within the Second Circuit, courts have found this requirement to also apply prospectively in the form of direct payment to the school. See Connors v. Mills 34 F. Supp. 2d 795, 805-806 (N.D.N.Y 1998) (“once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately”).

Tuition Reimbursement/Prospective Tuition Funding The IDEA provides that children with disabilities are entitled to a FAPE 20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP 34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits Bd. Of Educ. Of The Hendrick Hudson Cent. Sch. Dist. v. Rowley 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must “offer a student an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 W 1066206, 137 S.Ct. 988, 69 IDELR 17 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate education, significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parent’s child or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Prong One The DOE did not meet its burden of proof and demonstrate it offered a FAPE to Student for the 2020-21 school year because it failed to present any testimony to support its contention that it offered the Student a FAPE for the 2021-2022 school year. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE. There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations. Therefore, the DOE has not met its burden of proof in this proceeding. The first prong of the three Burlington/Carter criteria for an award of prospective tuition has been met.

Prong Two The Parent has the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” Gagliardo v. Arlington Cent. Sch. Dist. 489 F.3d 105, 112 [2d. Cir. 2007] 8 N.Y.C.R.R. 200.1 [ww]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or state education standards or requirements” Frank G v. Bd. Of Educ. 459 F. 3d 356, 364 [2d. Cir. 2006].

The standard to apply is whether “[the] unilateral private placement … provides educational instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parent’s unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo 489 F. 3d at 112 (quoting Frank G, 459 F. 3d at 364-65).

Moreover, the private school placement need not be approved by the state educational agency to provide instruction to children with disabilities nor must it employ certified special education teachers or have its own IEP. (cite) Florence County School District Four et. al, v. Carter 510 U.S. 7 (1993).

As an initial matter DOE asserts that the school year at issue is the 2021-2022 school year which is not in dispute. The DOE further asserts that the school year at issue is June 28, 2021 through June 30 2022 and since the school year starts on July 1 not June 28, the period of June 28, through June 30 2021 should be deducted from any tuition award as the school year does not fall within the definition of “school year” pursuant to N.Y. Educ Law § 2(15). DOE’s argument is unavailing as the appropriateness of the unilateral placement operates under a different standard than the DOE. Moreover, no evidence was introduced as to the applicability of the definition to the situation at bar and no evidence was proffered as to the amount of a deduction that was alleged to be warranted.

Similarly, Parent’s request to introduce the 2022-2023 IEP into evidence is denied. The DPC (Ex. A) references only the 2021-2022 school year and Parent failed to raise the issue of entering that IEP into evidence until its closing brief. This matter will be decided on the merits of the evidence entered into evidence at the time of the hearing.

The Parent presented extensive affidavit testimony and submitted substantial documentary evidence in support of her position that the Student’s placement was appropriate (Exs. B,C, D, E,F, G, H, I, J, K, LJ). The affidavit testimony of the Parent’s witness, and her documentary evidence established that the Student’s placement at School is appropriate and provided the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs supported by such services that are necessary to permit him to benefit from instruction.

Parent introduced a description of The School (Ex. B). It was created in Redacted to serve the unique academic, social, emotional and physical needs of students with special needs, from childhood to adolescence (Id.). The description further stated that the School’s mission is to provide each student with a diverse education in a safe, supportive environment that promotes self discipline, motivation and excellence in learning (Ex. B). The description states that children learn best in a safe, caring environment, one that values diversity, collaboration and risk-taking. Students are taught life management and communication skills and School’s team joins the parents and community to assist the students in developing skills to become independent and self-sufficient adults, according to their individual abilities (Id.).

Parent also introduced the testimony of Redacted, who for the past Redacted, has been employed as the Redacted (“Program Director”) (“PD”) (Ex. O-2).

PD testified that she received Redacted in both Education and Psychology and then received her Redacted in Special Education and is also certified by New York State as a teacher in both Education and in Special Education (Ex. O-1)..

She testified that at the School, students are assigned to classrooms comprised of students of similar age and similar levels of functioning (Ex. O-2). PD further testified that all educational instruction is provided in a small classroom setting by a certified and licensed bi-lingual Redacted special education teacher (Id.). She further testified that with respect to Student, during the 21-22 school year he was placed in a 4:l:1 class (4 students, 1 certified teacher, 1 aide or assistant) (Ex. O-2).

PD testified that in her capacity as Program Director, she supervises the classroom teachers and works together with the teachers in the design of the curriculum and establishment of goals which is individualized for each student attending the School (Ex.O-4). She further testified that she is also responsible for evaluating students and participating in IEP meetings for School students with the New York City Department of Education (Id.).

She further testified that she works closely with related service providers to ensure that all School students, including Student, have been working appropriately toward achieving their goals (Ex. O-4).

PD further testified that in her role, she spends a good deal of time in every classroom observing every student and meets with teachers regularly where we discuss each student's progress, and to make changes or modifications to the student's IEP when necessary (Ex. O-5). She further testified that she meets regularly with each student on a one-to-one basis in order to better understand and to address more effectively their educational and behavioral needs(Id.). PD testified that she is personally familiar with each and every student attending the School, including, Student, who is the subject of this hearing.(Id.).

She further testified that throughout the 2021-2022 school year, she observed and interacted with Student both one-on-one and in group settings on an almost daily basis (Ex. O-5). PD further testified that she also meets regularly with his teachers, aides and his related service providers to discuss and review his progress (Id.).

PD further testified that Student was enrolled as a student in School during the 2021- 2022 School year for a 12 month Educational Program, which began in July 2021 (Ex. O-7).

She testified that the School’s educational program runs Monday through Thursday from 9:00 a.m. until 4:00 p.m., Fridays from 9:00 a.m. until 12:00 p.m. and Sundays from 10:00 a.m. until 2:00 p.m. (Ex. O-8). PD testified that although the school is closed for most Jewish holidays, it remains open during all of the public school secular holiday and vacation periods during which most public schools are closed and thus, during the course of any school year, School provides its students with more days and hours of educational services that are provided to students in the New York City public schools (Id.).

PD further testified that School provides its students with a secular, general education educational program, that is with the exception of a 30 minute period each day and a 15 minute period Mondays through Thursdays, during which the children have a "Davening" or prayer period (Ex.O-9 ). She testified that the School views this prayer period not so much as a religious activity, but rather as teaching students an "activity of daily living" because it teaches them what occurs in a synagogue during prayer sessions, and how to behave properly during synagogue attendance bearing in mind that synagogue attendance is a significant part of the lifestyle of their family and the community in which they reside (Id.). She testified that learning these skills, allows Student, to appropriately participate with their family members and community members in synagogue attendance (Ex O-9).

PD further testified that during the 2021-2022 school year at issue in this case, Student received 12 months of educational services at the School as well as all related services as proscribed on his IEP's for that school year, including Occupational Therapy (“OT”), Speech-Language Therapy (“SLT”) and Counseling in amounts at least equal if not greater in both frequency and duration to the frequency and duration of related services set forth on this student's IEP for the school year at issue in this case (Ex. O-10).

PD testified that the OT, SLT and Counseling services were all provided to him by highly experienced and New York State licensed providers and that due to the specialized facilities and equipment available at School, including, but not limited to a therapy swimming pool, and various sensory gyms containing all types of specialized equipment designed to meet the unique needs of children with disabilities, the quality of services provided to Student are of much greater variety and quality than those which would have been available to him in the proposed public school placement, and significantly contributed to his ability to make a great amount progress during the 21-22 school year (Id.).

PD also averred that it would have been inappropriate to place this student in the large District non-specialized public school as was being offered to him by the DOE, or in a large 12: l+1 classroom as was being offered to him by the DOE for the 2021-2022 school year because she believed that Student required a placement in a smaller school setting than that being offered by the DOE and in a classroom with much fewer than 12 students as was also being offered by the DOE (Ex. O-11).

She further testified that placing Student in a large school, or in a classroom of 12 students would have been inappropriate for this student; would have impaired his ability to learn and to make educational progress; would have impaired the ability of the other students to learn and make educational progress; would have impaired the teacher's ability to provide instruction to him and to the other students; would have impaired his ability to interact appropriately with his peers; and most likely would have resulted in regression for this student (Id.).

PD testified that the program offered by the DOE that limited him to 10 months only was inappropriate. It was crucial for him to attend school for 12 months in order to ensure that there would not be significant regression, in academic, social and behavioral areas (Ex. O-13). She testified that Student has difficulty learning, applying and retaining information and skills, and without constant review and repetition during the summer months, he would have started school in September needing to relearn skills (Id.). PD further testified that regarding his social skills and behaviors, Student does not interact with his peers or behave in an age appropriate manner (Ex. O-13). She further testified that Student misreads cues and takes offense at the slightest word and reacts in a defensive and at times aggressive manner (Id.). Student has difficulty taking responsibility for his actions and will easily blame others (Ex. O-13).

PD testified that with consistent modeling, role play, encouragement and reminders, Student has shown improvement in these areas. Not having the supervision, prompting and reminders for two months, would have caused him to significantly regress in these areas (Id.). She further testified that Student suffers from not only cognitive deficits; he is socially and behaviorally impaired and seeks sensory input as well (Ex. O-15). She testified that Student’s impairments affect his ability to learn and to retain new information and skills (Id.).

PD further opined that these deficits present themselves throughout all of his social and behavioral interactions with others and that Student has great difficulty responding appropriately to typical social cues and in regulating his emotions in response. Moreover, this student has great difficulty regulating his own emotions and reactions and in many social interactions his inappropriate responses to these interactions generally reflect his inability to regulate his emotional responses to these situations. (Ex O-15). She testified his situation is further exacerbated by the fact that he holds on to frustrations for extend periods of time nd that all of this, in my opinion, mitigate against the appropriateness of the DOE's decision to place this student in a large District non-specialized School or in, what would for him be, a large in a 12:1 +I (Id.).

PD further testified that in a large District non-specialized school, he would have gotten into frequent fights and arguments with other students and due to impulse control, he is apt to accept dares and challenges in order to feel liked by others and easily followed others’ misbehaviors (Ex O-15). She testified that those problems are addressed at the School since it is a small school where children are under constant supervision (Ex O-16).

PD testified that Student made a great deal of progress during the 2021- 2022 School year academically, socially and behaviorally (Ex.O-19 ). Although he continued to require supervision and prompting regarding his behaviors, he nevertheless made a great deal of progress both educationally and behaviorally (Id.). She further testified that Student successfully learned to more readily admit to his inappropriate behaviors in lieu of blaming others, and he exhibited an increased understanding of the effects of his behaviors. In addition, he developed the ability to apologize for his actions (Ex O-19).

PD also testifies He more consistently used his speech to express any needs and emotions and demonstrated an ability to self calm with decreased prompting and in her opinion that in these areas, Student had significant growth and improvement during the 2021-2022 school year (Id.).

She further testified that Student’s reading skills are on a Redacted grade level (Ex O-20). She further testified that he is able to independently answer who, what, when and where questions on both a story he read and a story which has been read to him. He is able to identify character in a story, can identify a simple main idea, understands cause and effect and can predict simple outcomes (Id). She also testified that during the school year Student learned to identify nouns and verbs and that the foregoing is a significant improvement for him from the beginning of the school year (Ex. O-20).

PD further testified that in writing, Student has demonstrated improvement both in his formation, sizing and spacing of letters and words and his writing is continuously clearer and more legible (Ex. O-21). Additionally, Student has learned to create and write short sentences independently (Id.).

She further testified that in math, Student has also demonstrated significant progress, in both skills and in his confidence in using and applying those skills. He is able to confidently complete addition examples with 2 digit numbers without regrouping, and with regrouping with assistance (Ex. O-22). He is able to complete subtraction examples with 2 digit numbers without regrouping as well and is able to apply simple addition and subtraction skills to simple word problems (Id.). PD also testified that Student learned the multiplication tables through 10, could tell time on an analog clock to 5 minute increments and can identify all coins and their values, add groups of coins, and make basic change (Ex. O-22).

PD further testified that Student also made progress in his language skills because is vocabulary increased significantly and he learned to use his words more readily to express his emotions (Ex O- 23). She further testified that Student’s much improved speech and language skills had a significant effect on his ability to better control his behaviors (Id.).

She further testified that Student also made a great deal of progress in his life skills (Ex. O-24). His increase in maturity especially during periods of transition has allowed School personnel to afford Student greater latitude in going places independently, this with decreased supervision (Id.). PD further testified that Student’s ability to focus on a task to completion improved somewhat and that he has improved in maintaining personal boundaries and others’ space (Ex. O-24). She further testified that Student has become very eager to assist others and does so and takes pride in doing so (Id.). PD further testified that although Student still needs reminders especially if he becomes frustrated and he has demonstrated great improvement in his ability to work with others (Ex O-24).

PD testified that School was an appropriate educational program for Student in the 21-22 school year and throughout the year he made progress academically, behaviorally and socially (Ex. O-25). She testified that the methodology of the School, particularly the small school setting and the small group instruction was essential to Student’s progress (Id.). PD further testified that School ensured that Student’s goals were individualized and tailored for him and were constantly being revisited to match his progress or to address any new areas of concern (Ex. O-25).

She testified that Student was encouraged to complete his work and was held accountable for his behaviors and progress (Id.). Finally, she testified that incorporating positive activities into Student’s daily instruction such as music or incorporating regular physical therapy and a strong educational program provided Student with a challenging and ambitious environment in which he made a great deal of progress (Ex. O-25).

The DOE challenged the Parent’s contention that Student’s placement was appropriate in its closing brief. DOE first asserted that the unilateral placement was too restrictive for the student and the student to teacher ratio was unsupported by evidence or testimony. In support, DOE cites to one SRO decision, Appeal No. 11-005 (2/11/2011), a First Circuit opinion, Raffety v. Cranston Pub Sch. Comm. 315 F3d 21 (1st Circ. 2002), and two Southern District of New York cases; Pinn v. Harrison Cent Sch. Dist. 473 F. Supp 2d 477 482-83 (S.D.N.Y 2007) and W.S. v. Rye City Sch. Dist. 454 F. Supp 2d 134 (S.D.N.Y. 2006).

The SRO decision is factually inapposite to the situation at bar and is not considered precedent, although citations to cases and statutes in such a decision are controlling. Similarly, the facts in the First Circuit case do not involve a denial of a FAPE and in any event, a First Circuit decision is not controlling in this circuit. Finally, the Southern District cases cited are also factually distinguishable to the case at bar and the Second Circuit case of C.L. v. Scarsdale Union Free School District 744 F.3d 826 (2d Cir. 2014) carries greater precedential weight.

The C.L. Court ruled that where a child with a disability was denied a FAPE and the child’s parent’s placed student in a private school and sued for tuition reimbursement, the private placement was found to be appropriate and the argument that it is not because the program and the placement is too restrictive is not persuasive because when a child is denied a FAPE, his parents may turn to an appropriate specialized private school designed to meet special needs even if the school is more restrictive. Therefore, since a FAPE was not provided the assertion regarding the least restrictive environment is unavailing.

DOE also asserts within the rubric of the appropriateness of the unilateral placement that a 12 month program/ESY program is unnecessary and presumably, is evidence of the inappropriateness of the placement. DOE asserts that Parent’s witnesses testimony is conclusory and speculative (Ex. I p. 9) and it is evident that Student is enrolled in a 12 month program because that is all the school offers (Id.) and finally, the School the Student previously attended agreed that Student needed a 10 month program (Ex. I p. 9)

As set forth above, Parent presented testimony of Student’s susceptibility to substantive regression in academics, social and behaviors and that Student has difficulty learning, applying and retaining information and skills (Ex. O-13-14). Parent’s witness further testified without constant review and repetition during the summer months, he would have started school in September having to relearn skills (Ex. O-13).

Parent has met its burden of proof demonstrating by a preponderance of the evidence (greater than 50%) that a need for 12 months of services in order to prevent substantial regression is warranted pursuant to 8 NYCRR § 200.6(k). The DOE failed to rebut the Parent’s evidence because the evidence proffered by the DOE is just its attorney’s subjective interpretation of the Parent’s evidence and does not rise to the level of a successful rebuttal. Therefore, the 12 month program is found to be appropriate.

DOE also assets that the unilateral placement is not specifically designed for Student and that the unilateral placement did not adapt as appropriate to the needs of the Student the content, methodology or delivery of instruction to address Student’s unique needs as set forth in 8 NYCRR § 220.1(vv) (Ex. I. p 6). In support of its assertion, DOE attorney characterizes the Parent’s witness’ testimony as devoid of information on why the course work is tailored to the student’s specific needs (Ex. I p. 7), the Parent’s evidence is devoid of proof that Student was provided with any additional supports or accommodations to address his needs and deficits (Id.) and there is an absence of any evidence of updated goals and objectives throughout the school year (Ex. I p.7). Finally, DOE asserts that just because progress was claimed to have been made that in and by itself does not determine that the unilateral placement was appropriate (Id.).

First, as set forth above, no one factor is dispositive of the propriety of the unilateral placement and DOE does not state why, even assuming arguendo that its allegations of evidentiary deficiencies are true, those purported deficiencies cumulatively or individually rise to a level of importance so as to demonstrate that Parent failed to meet its burden of proof in establishing the propriety of the unilateral placement. Moreover, I disagree with DOE’s assertions that insufficient evidence was introduced to show the program at School was tailored to Student’s needs.

The Student’s program including a classroom routine/expected behavior outline ( Ex. E), Student’s Schedule (Ex. L) and his behavior intervention plan (“BIP”) (Ex. I) are the epitome of a customized program. Parent also presented a description of the Student’s progress achieved from the education program and related services provided by School (Ex. O, Tr 129-130) (Ex. II. P.2). Finally, and contrary to DOE’s assertion, School provided the related services recommended by the DOE (Ex. 1 pps18-19) (Id.). Based on the foregoing, the DOE failed to establish that the Parent didn’t meet her burden of proof in establishing the propriety of the unilateral placement.

Based on the extensive credible testimony of Parent’s witness and her evidence, she has met her burden and satisfied the second of the three Burlington/Carter criteria for tuition reimbursement/ prospective payment.

Prong Three

A claim for reimbursement must be supported by equitable considerations, which are relevant to fashioning relief under the IDEA M.C. v. Volunton Bd. of Educ. 226 F.3d 60, 68 (2d Cir. 2009). The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement/prospective payment hinges, in large part on whether or not the parent cooperated with the CSE. However, the DOE did raise the issue of Parent’s entitlement to funding for religious instruction and asserts that DOE should not absorb the cost of same.

DOE further asserts that ten percent (10%) of Student’s instruction at the unilateral placement was religious instruction (Ex. O) and constituted davening or prayer and the purpose of this instruction is to teach students what occurs in a synagogue during prayer session and how to behave during synagogue attendance (Id.). DOE further asserts that while Parent’s witness testified that it has non-religious significance, there is clearly a religious component to the activity (Ex. L) and thus, a reduction by ten percent (10%) for the religious instruction the student received during the school that is included in the tuition is warranted (Ex. I p. 10).

Parent asserts that the ten percent reduction in tuition is unwarranted because the time dedicated to davening is not meant to promote a religious activity, but to teach students to properly follow directions as to proper decorum and behavior during that time, being able to sit with and not bother others, being able to set up and clear for the activity and learn various behaviors that help children understand how to properly behave in this type offsetting since prayer is something that takes place within their homes as well, with their parents these learned behaviors constitute transferable life skills and should be classified as such (Tr. p. 135) (Ex. II p. 3).

It is axiomatic that if the davening and related activities are determined to be religious activities, then a reduction based on the percentage of the curriculum devoted to those activities is warranted because public monies are not permitted to be used to fund those religious activities J.G. v. Kiryas Joel Union Free Sch. Dist. 777 F. Supp 2d 606, 658 (S.D.N.Y. 2011). The Court took great care in recognizing the intersection of the rights to a FAPE, religious freedom and the limitations on the intersection of both and it is worth noting that the Kiryas Joel Court cited to several comprehensive secondary sources regarding the delicate balancing act between the rights and limitations imposed by both the IDEA and constitutional right to religious freedom.

In the case at bar, although Parent is correct in classifying the skills and portion of the curriculum as transferable life skills and are inarguably helpful, this IHO is constrained by the law and it is clear that these transferable life skills are taught and promoted in a context and within the framework of what must unquestionably be called a religious activity and thus, I am bound to follow the law in the Second Circuit and hold that a ten percent (10%) reduction in tuition reflecting the percentage of school curriculum dedicated to religious activity is warranted.

According to Exhibit K, the total tuition for the 2021-2022 school year is Redacted dollars,) which is broken down into two parts; tuition for the education program totaling Redacted dollars and a related services component totaling Redacted dollars. The record reflects that the religious activities are only part of the education program and does not impact the related services so accordingly, the ten percent reduction must only affect the education component of the tuition.

A ten percent reduction of that component totals Redacted dollars (10% of Redacted dollars for a total education component of Redacted dollars in addition to the Redacted dollars for related services for a total tuition of Redacted dollars reflecting the ten percent reduction in the tuition component for the religious instruction portion of the educational curriculum for the 2021-2022 school year.

The DOE made no other argument and provided no evidence that the Parent was anything but cooperative, and in no way impeded the CSE from offering Student a FAPE. The testimony established that Parent is responsible for the full school tuition and related services totaling Redacted dollars (Ex. O).

The Parent also disclosed in her affidavit (Ex. P-6) that the combined family income was less than Redacted of the total School tuition for the 2021-2022 school year (Ex. P). Parent’s evidence is found to be credible and an award of prospective direct tuition payment to school for the remaining balance as consistent with Connor v. Mills 34 F Supp. 2d 795, 805-06 (N.D.N.Y 1998) is warranted.

Based on the foregoing. I find that equitable factors support the Parent’s claim for prospective tuition payment for the cost of tuition and related services owed to School for the 2021-2022 school year less the ten percent reduction as described above for a total award of Redacted dollars. The Parent has met the third of the three Burlington/Carter criteria for tuition reimbursement and is entitled to prospective payment of the cost of tuition and related services for the 2021-2022 school year.

Orders

WHEREAS the New York City Department of Education has as of the date of this Order, failed to offer Student a FAPE for the 2021-2022 school year; and

WHEREAS School is found to be an appropriate placement for Student as it provides instruction and services that are specially designed to meet Student unique needs and he has made meaningful progress at School, accordingly:

• • IT IS HEREBY ORDERED that the Department of Education provide direct payment to School for Student’s tuition and related expenses for the 2021-2022 school year within 30 days of the date of this order in the amount of Redacted dollars.

Dated August 31, 2022

Ned Kassman_________________

Ned Kassman

Impartial Hearing Officer

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.

DISTRICT EVIDENCE

No. Description Date Pages

Individualized Education Program (IEP)

3/18/2021

25

IEP Attendance Page

3/18/2021

1

IEP Meeting Minutes

Undated

3

Occupational Therapy Report

11/2020

1

Speech Therapy Report

11/2020

2

Counseling Report

11/2020

6

Prior Written Notice

8/6/2021

4

School Location Letter

8/6/2021

3

PARENT EVIDENCE

LETTER DATE DOCUMENT PAGES

A September 9, 2021, Impartial Hearing Request, 4

B Undated, Description of Redacted

Program, 2

C July 2021-June 2022, Math Goals and Objectives, 2

D July 2021-June 2022, Communication Goals and Objectives, 1

E July 2021-June 2022, Classroom Routines/Expected Behaviors, 1

F July 2021-June 2022, Life Skills Goals and Objectives, 1

G July 2021-June 2022, Reading/Language Arts Goals and

Objectives, 1

H July 2021-June 2022, Sensory Diet Plan, 1

I July 2021-June 2022, Behavior Modification Plan, 1

J June 28, 2021, Email with Ten Day Notice, 2

K June 28, 2021, 2021-2022 Enrollment Contract, 2

L July 2021-June 2022, Student Daily Schedule, 1

M March 21, 2022, Affidavit of Redacted, 1

N June 28, 2022, Attendance Record, 1

O August 9, 2022, Affidavit of Redacted, 10

P August 9, 2022, Affidavit of Redacted, 1

IHO Evidence

I Closing Brief for DOE 08-26-2022 11 pages

II Closing Statement 08-25-2022 4 pages