New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570607 - NYC: 224864

INTRODUCTION

The Parent, through their representative, filed a Due Process Complaint (DPC) on or about March 3, 2022. In the DPC, the Parent alleges that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2021-2022 school year, thoroughly and appropriately evaluate the Student on a timely basis, create a legally appropriate individualized education program (IEP) and placement, and follow the procedural requirements of the Individuals with Disabilities Education Act (IDEA). (Ex. A).

The Parent requests the following relief: a declaratory judgment that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year, denied the Student an appropriate evaluations and reevaluations, subjected the Student to blanket policies and predetermination, and discriminated against the Student based upon his disability; that the DOE fund at enhanced market rates/provide compensatory education for the denial of FAPE and any deprivation of pendency including at minimum a bank of 1:1 behavior therapy; 1:1 ABA; home-based services; 1:1 SEIT, 1:1 instruction, tutoring, AT, AT training, OT, SLT, PT, as well as any other services recommended as a result of independent evaluations; prospective funding, satisfaction of the debt for and/or reimbursement to the Parent for the Student's program and related services at the Private School for the 2021-2022 school year; a legally valid IEP that follows the procedural and substantive requirements of the IDEA and New York State Education Law that includes adequate goals and that includes, at minimum, the services requested herein; and a finding that the Parent has cooperated throughout the special education process and, to the extent that equities may be weighed, they favor the Parent. (Ex. A).

PROCEDURAL HISTORY

I was appointed on June 30, 2022. A pre-hearing conference was held on July 12, 2022. A status conference was held July 27, 2022. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. I). A status conference was held August 17, 2022. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. II). On October 12, 2022, both parties appeared for the hearing. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. III). The DOE Representative made an opening statement, and submitted five exhibits into the record on consent of the Parent Representative. The DOE did not call any witnesses and rested its case. The Parent Representative submitted 20 exhibits into the record on consent of the DOE Representative. On October 27, 2022, both parties appeared for the continued hearing. The Parent Representative made an opening statement and submitted two additional exhibits into the record on consent of the DOE consisting of written witness affidavits from the Private School Teacher (Ex. U) and the Parent (Parent Aff. 1 - Ex. V). Additionally the DOE Representative consented to the oral testimony of an additional witness for the Parent, the S/L Pathologist. The DOE Representative cross-examined the Private School Teacher. (See October 27, 2022 transcript). On December 2, 2022, both parties appeared for the continued hearing. The Parent Representative submitted four additional exhibits into the record on consent of the DOE, including written witness affidavits from the Private School Educational Director (Private School Director) (Ex. Y) and the SEIT (Ex. Z). The DOE Representative cross-examined the Private School Director. (See December 2, 2022 Transcript). On December 12, 2022, both parties appeared for the continued hearing. The Parent Representative submitted three additional exhibits into the record on consent of the DOE, including a written witness affidavit from the Psychologist (Ex. BB) and a second written witness affidavit from the Parent (Parent Aff. 2 – Ex. CC). The Parent Representative also elicited additional oral direct testimony from the Psychologist on consent of the DOE. The DOE Representative cross-examined the Parent and the Psychologist. The Parent rested their case. On January 12, 2023, both parties submitted closing briefs. (IHO Exs. IV and V). On January 18, 2023, both representatives appeared for argument on the closing briefs. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. VI). (See January 18, 2023 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The Parent testified credibly as follows. The Student is diagnosed with Autism Spectrum Disorder (ASD) and has received special education services from the DOE since he aged out of the NYC early intervention program at age three. (Parent Aff. 1 at ¶ 4). The Parent and his spouse participated in the June 2021 IEP meeting for the Student. Prior to this meeting, they submitted an updated neuropsychological evaluation of the Student conducted by the Psychologist (Ex. O) as well as a letter from the Psychologist (Ex. P). At the IEP meeting, they asked the DOE to continue the Student's individual SEIT services consistent with the Psychologist's recommendations, however they were told the DOE could not recommend 1:1 instruction on the Student's IEP. (Id. at ¶¶ 17-20). They also asked for the Student's IEP to include a placement with mainstreaming opportunities for positive peer role models consistent with the Psychologist's evaluation and letter, but the DOE only recommended a [REDACTED] placement for the Student, which was completely self-contained and did not offer any mainstreaming opportunities. (Id. at ¶¶ 21-22). The Parent also requested a home-based/after school program for the Student to include S/L therapy and SEIT services, but the DOE was unwilling to recommend a dual home-based program. (Id. at ¶¶ 23-24). Because the Parents disagreed with the June 2021 IEP recommendations for the Student, they notified the DOE of their intent to place him in a private program and continue his pendency SEIT and related services via a ten-day notice (TDN) submitted by their attorney. (Id. at ¶¶ 25-26; Ex. D). The DOE did not respond to the TDN with any alternative program or placement recommendations for the Student. Left with no other choice, the Parents enrolled the Student in the Private School program for the 2021-2022 school year and continued the majority of his pendency services, which allowed the Student to make progress. (Id. at ¶¶ 27-28). For example, the Student's social skills improved during the 2021-2022 school year, as he learned appropriate behaviors from his typically developing peers during lunch and recess, as well as improved social language skills from his after-school S/L provider. Additionally his math, writing, handwriting, and reading skills all improved during the 2021-2022 school year due to the individual instruction and OT services he received at the Private School combined with his after-school SEIT instruction. (Id. at ¶¶ 29-30). The Parents' total household income for 2021 was less than $[REDACTED], and the Parents could not afford to make tuition payments for the Private School for the 2021-2022 school year, which is why they are seeking direct funding of the Private School tuition rather than reimbursement. (Id. at ¶¶ 3-6). The Parents seek a determination that the Student's pendency services of 20 hours per week of 1:1 SEIT services, four 30 minutes sessions per week of 1:1 S/L, three 30 minute sessions per week 1:1 PT, a 12-month extended school year, and special education transportation accommodations of limited travel time in a small, airconditioned school bus/minivan, as detailed in the pendency order dated October 15, 2020 for Case No. 194966 (Ex. C) and the pendency order dated June 23, 2022 for this case (Case No. 224864) (Ex. I) remain an appropriate special education program for the Student. (Id. at ¶ 8). Although the Parents could not find a PT provider to fulfill the Student's pendency PT provision for the 2021-2022 school year, they believe that he still requires such services. (Id. at ¶ 9).

The Parent also seeks reimbursement of transportation expenses incurred for the Student to attend the Private School during the 2021-2022 school year. Pursuant to the two pendency orders that were in place during the 2021-2022 school year, the DOE was required to provide special education transportation services to the Student. However the DOE did not provide a bus route from September 1, 2021 to November 16, 2021 at the beginning of the 2021-2022 school year and the Parent had to pay private car services. (Parent Aff. 2 at ¶¶ 4-6). Once a bus route was set up on November 16, 2021, the Student was only provided with an appropriate afternoon bus route as the morning bus route provided by the DOE was not set up to allow the Student to arrive at school on time until February 28, 2022. (Id. at ¶ 8). From November 16, 2021 until February 28, 2022, the Parents continued to pay out of pocket for private transportation for the Student's morning transportation to the school. (Id. at ¶ 9). In April 2022, the bus driver quit, and the Parents had to pay for round trip transportation out of pocket for three additional days. (Id. at ¶ 10). The Parent incurred total out of pocket expenses for transporting the Student to and from school during the 2021-2022 school year of $3,020.00, as calculated for every school day that the DOE failed to provide transportation services during the months in question. (Id. at ¶¶ 11-32).

The Psychologist testified credibly as follows. She is a clinical neuropsychologist who holds a doctorate degree in clinical psychology, with an additional specialty in clinical neuropsychology. She completed a post-doctoral fellowship in developmental disabilities, and is the head of clinical neuropsychological services at an assessment and diagnostic clinic in New York City. She has provided neuropsychological evaluations to individuals with developmental, learning, neurodegenerative disorders and traumatic brain injuries for 32 years. (Psychologist Aff. at ¶¶ 1-7). She conducted a neuropsychological evaluation of the Student in January and February 2021 and prepared a report dated February 17, 2021. (Id. at ¶¶ 10-12; Ex. O). At the time of testing, the Student was attending the Private School. (Id. at ¶ 14). She also wrote a follow up letter in June 2021, clarifying some of the recommendations in her report. (Id. at ¶¶ 16-17; Ex. P). Based on her testing of the Student, it was her professional opinion that the Student attend a small, specialized school but also be exposed to mainstreaming opportunities in order to develop appropriate social skills. (Id. at ¶ 18). She is familiar with DOE [REDACTED] programs, and they do not offer exposure to typically developing peers as they are completely self-contained school programs. (Id. at ¶¶ 19-20). Based on her evaluation of the Student, it is the Psychologist's professional opinion that the Student continue with his 1:1 special education instruction/ABA services and related service mandates of OT and S/L that he was receiving at the time, and that he should receive counseling services as an additional related services mandate. (Id. at ¶¶ 21-22).

The Private School Director testified credibly as follows. She holds a doctor of education degree in administration and supervision, with a dissertation in special education, and a master's degree in speech language pathology. She is a New York State (NYS) licensed speech pathologist and holds a certification in staff development focusing on neurodevelopmental variation. She previously served as an associate professor of language and learning disabilities, and for the past 40 years has been the Educational Director of the Private School special education program. (Private School Director Aff. at ¶¶ 1-7). The Private School special education program runs alongside regular education classes, so that there are opportunities for mainstreaming. The Private School Director's duties and responsibilities include supervising the educational programs at each school site, providing teacher training for the special and general education teachers in the programs, and reviewing applications for admission to the programs. The Private School classes and resource rooms in New York are staffed by NYS certified special education teachers who utilize a special education curriculum, with every student receiving an individually tailored program to meet their unique special education needs. (Id. at ¶¶ 8-15). She is familiar with the Private School program attended by the Student, which includes four self-contained special education classrooms of five to six students each with IEP classifications of learning disabled, speech impairment, or autism. Each class is carefully grouped based on the academic, social and learning needs of the students. The Private School program offers related services of S/L, OT, and counseling. (Id. at ¶¶ 16-24).

The Private School Director is familiar with the Student, have reviewed his application for admission and met with him and his family prior to his matriculating into the Private School program in the fall of 2020. She also observed the Student during her regular visits to the Private School Program during both the 2020-2021 and 2021-2022 school years. (Id. at ¶¶ 26-28). The Student's school day lasted from 9 a.m. to 4:30 p.m. Monday through Thursday and 9 a.m. to 12 p.m. on Friday. The Student had prayer and religious studies from 9 a.m. to 10:15 a.m. Monday through Friday. This was the only religious portion of the school week, comprising approximately 19 percent of the Student's weekly school program (6.25 hours per week divided by 33 hours of school per week). The Student's [REDACTED] language and reading classes were not religious in nature, but were rather classes studying the foreign language of [REDACTED]. (Id. at ¶¶ 29-39). The Student also had counseling sessions twice a week for 30 minutes and OT sessions twice a week for 30 minutes. Based on her review of the Student's progress reports (Exs. J, K, X & W) and speaking to his classroom teacher for the 2021-2022 school year, it is the professional opinion of the Private School Director that the Student made progress during the 2021-2022 school year. (Id. at ¶¶ 40-42).

The Private School Teacher testified credibly as follows. She holds a master's degree in general and special education and is a NYS certified special education and general education teacher. She is a classroom teacher at the Private School and has been a teacher there for nine years. (Private School Teacher Aff. at ¶¶ 1-4). The Private School special education program offers self-contained special education classrooms hosted within mainstream school sites, providing the opportunity for the Private School students to receive the small full-time special education programming they require for academics while allowing for mainstreaming opportunities as appropriate for each student. (Id. at ¶ 7). Every student in the Private School has an individually tailored program that addresses their unique special education needs, and each Private School class is carefully grouped based upon academic, social, and learning needs. (Id. at ¶¶ 8, 12).

The Private School Teacher was the Student's classroom teacher for the 2021-2022 school year, and is familiar with his class schedule for that year. (Id. at ¶ 15). The Student's school day ran from 9 a.m. to 4:30 p.m. Monday through Thursday and 9 a.m. to 12 p.m. on Friday. (Id. at ¶ 17). The Student had prayer and religious studies from 9 a.m. to 10:15 a.m. Monday through Friday. There was a 15 minute recess period until 10:30 a.m., then [REDACTED] language and reading instruction from 10:30 a.m. to 12:10 p.m. Monday through Thursday. On Friday, [REDACTED] language and reading instruction ended at 12 p.m. (Id. at ¶¶ 18-21). From 12:10 p.m. to 1 p.m. Monday through Thursday, the Student had recess and lunch. (Id. at ¶ 24). The Student had academic classroom instruction from 1 p.m. to 4:30 p.m. Monday through Thursday. (Id. at ¶ 16). On Monday and Wednesday during the 9 a.m. to 12:10 p.m. window, the Student also had OT sessions for 30 minutes, and on Tuesday and Thursday he had counseling sessions for 30 minutes. (Id. at ¶¶ 22-23). The Student was very creative, with strong artistic and story telling abilities, although it was challenging for him to express himself in writing. (Id. at ¶¶ 26-27). The Student had significant struggles in the classroom setting, including understanding new mathematical concepts. (Id. at ¶¶ 28-29). The Student had very low self-esteem and challenges with self-advocacy, including asking for help. He had a negative attitude about his own capabilities, stating he knew he was doing something wrong or commenting he was "so dumb" for not getting the right answer. While some of these social emotional issues interfered with his academic growth, the Private School Teacher believes his academic capabilities can improve as he develops a stronger sense of self. (Id. at ¶¶ 30-31). For the 2021-2022 school year, the Student was in a 5:1:1 classroom with an assistant teacher and his own paraprofessional. The students in the class were in the 5th grade range, academically and socially emotionally appropriately grouped, all with learning disabilities and similar needs and challenges. None of the students had significant behavioral challenges, so the Student was surrounded by and learned from positive peer models. (Id. at ¶¶ 32-38). In the 5:1:1 setting the Student received significant direct instruction, time to process information, individualized prompting, and positive reinforcement. This small group was critical for the Student because of his need for direct instruction. (Id. at ¶¶ 40, 42). Over the course of the 2021-2022 school year, the Student made progress in reading using a leveled program that pushed him to keep reading and build stamina. The Student started the school year at an early 3rd grade level an ended at a mid to high 3rd grade level. (Id. at ¶¶ 46-49). The Student's writing skills also improved. His basic sentence structure was very poor at the beginning of the 2021-2022 school year, and they worked to strengthen the Student's skill set in developing more complex sentences and organizing written paragraphs. The Private School Teacher used formatting and outlines and worked with the Student on three to five paragraph essays, persuasive writing, and descriptive writing. Over the course of the 2021-2022 school year the Student made progress in writing with such strategies. (Id. at ¶¶ 57-62). For math, the Private School Teacher taught the student in a group of two. The Student needed a significant amount of 1:1 instruction and support in basic math skills. Based on classroom tests and assignments the Student made progress in math during the 2021-2022 school year, going from an early 3rd grade level to a mid to end of 3rd grade level by the end of the school year. (Id. at ¶¶ 50-56). Throughout the 2021-2022 school year, there were monthly meetings between all of the Student's teachers and related service providers to ensure everyone was targeting the same needs and working together. The Student made progress in all academic areas during the 2021-2022 school year, and the Private School program, in combination with the Student's afterschool SEIT and S/L services appropriately met the Student's needs. (Id. at ¶¶ 65, 68; Ex. R).

The S/L Pathologist testified credibly as follows. She holds a master's degree in speech and language with a minor in audiology. She has been a NYS certified S/L pathologist for 20 years (T p. 42 L 21 to p. 43 L 1), is PROMPT certified, oral motor certified, and certified in dynamic temporal tactile cueing. (T p. 41 L 9-16). She is familiar with the Student, having worked with him for over two years providing S/L services, and was his S/L provider during the 2021-2022 school year. (T p. 44 L 16-25). The S/L Pathologist provided S/L services to the Student four times a week for 30 minutes. She wrote the SLT Progress report (Ex. K), which is an accurate representation of the Student's progress in his S/L therapy for the 2021-2022 school year. (T p. 45 L 4-17). It is the S/L Pathologist's professional opinion that the Student requires a continuation of his after school S/L services four times a week for 30 minutes for a 12-month mandate in order to prevent regression and a lack of skills. Because the required S/L therapy is a large mandate, she believes it should occur after school to avoid taking the Student out of class, where he does well with his classmates and is able to grow academically during the school day. (T p. 45 L 21 to p. 46 L 14). During the 2021-2022 school year, the S/L Pathologist worked with the Student a lot on increasing his vocabulary and strategies for recalling words. If the Student doesn't know a word, he gets frustrated and gives up, which prevents him from communicating effectively or formulating his thoughts cohesively. (T p. 46 L 19-25). They also worked on having the Student read documents to figure out context clues, and predict what's happening, inferring what the next step will be. They also worked on the Student developing the main idea of a written passage – he is good at developing details but has trouble seeing the big picture. They have also worked on some prewriting, having the Student develop a simple paragraph, and organization skills. (T p. 47 L 1-11). For the 2021-2022 school year, the S/L Pathologist provided services to the Student pursuant to pendency orders that were in place, but was not paid for half of April, or all May or June 2022. (T p. 47 L 19 to p. 48 L 7).

The SEIT testified credibly as follows. She holds a master's degree in early childhood special and general education. She is a NYS certified special education teacher, a SEIT provider, and a BCBA with a graduate level certification. (SEIT Aff. at ¶¶ 1-4). She is familiar with the Student, having provided SEIT instruction services to him pursuant to his pendency order for Case No. 194966 which ended in April 2022. She began working with the Student in December 2020, providing approximately 10 hours per week of SEIT services. (Id. at ¶¶ 5-6). She wrote the SEIT Progress Report (Ex. J) regarding her work with the Student for the 2021-2022 school year, and in her professional opinion the Student made progress throughout the 2021-2022 school year with the SEIT services she provided. She believes that as of the spring of 2022, when she last worked with the Student, he continued to require at least 20 hours per week of individual SEIT services. (Id. at ¶¶ 8-10).

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 the 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. See 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 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). A school district must be able to "offer a cogent and responsive explanation for their decisions" in creating that IEP, and it is "through the IEP that "[t]he 'free appropriate public education' required by the Act is tailored to the unique needs of" a particular child". Id.

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 parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Unilateral Placement

As to Prong I of the Burlington/Carter standard, I find that the DOE failed to meet its burden. While the DOE submitted documentary evidence, including the June 17, 2021 IEP (Ex. 1), it failed to present any witnesses to explain how the 6:1+1 program in a [REDACTED] school with related services in a separate location was reasonably calculated to enable the Student to receive any educational benefits or make progress in light of his circumstances. I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2021-2022 school year. Moreover, a review of the Parent's evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2021-2022 school year. I credit the Psychologist's testimony that the [REDACTED] program recommended in the June 17, 2021 IEP is inappropriate for the Student as he not only requires a small, specialized school but also needs to be exposed to mainstreaming opportunities in order to develop appropriate social skills, and [REDACTED] programs are completely self-contained and do not offer mainstreaming opportunities or exposure to typically developing peers. (Psychologist Aff. at ¶¶ 18-20).

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' 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).

Here the Parent sought an educational program to address the Student's ASD consistent with the recommendations of the Psychologist in her February 17, 2021 neuropsychological evaluation that the Student required a small, specialized school that also allowed him to be exposed to mainstreaming opportunities in order to develop appropriate social skills (Ex. O), and enrolled him in the Private School for the 2021-2022 school year. (Parent Aff. 1 at ¶¶ 21-26). The Parent reports that the Student made progress in his placement at the Private School for the 2021-2022 school year in both social skills from mainstreaming opportunities and in academic skills due to the individual instruction and OT services he received at the Private School combined with his after-school SEIT instruction. (Id. at ¶¶ 29-30). I also credit the Private School Director that based on her review of the Student's progress reports (Exs. J, K, X & W) and speaking to his classroom teacher for the 2021-2022 school year, it is her professional opinion that the Student made progress during the 2021-2022 school year. (Private School Director Aff. at ¶¶ 40-42). I further credit the Private School Teacher, who noted that for the 2021-2022 school year the Student was in a 5:1:1 classroom with an assistant teacher and his own paraprofessional in a class of academically and socially emotionally appropriately grouped peers where he received significant direct instruction, individualized prompting, and positive reinforcement that allowed the Student to make progress in reading, writing and math. (Private School Teacher Aff. at ¶¶ 32-38, 40, 42, 46-62).

In reviewing the affidavits of the Private School Teacher, Parent, and Private School Director (Exs. U, V & Y), the weight of the credible evidence establishes that the Student's individual special education needs were being addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I find that the 5:1:1 class size, individualized program, and mainstreaming opportunities provided by the Private School meets the Student's specific academic, social, emotional, attentional, and functional needs and has contributed to the Student receiving an educational benefit at the Private School. Under these circumstances, I find that the Parent's witnesses credible, and that the Parent has met his burden in proving that the Private School offered an educational program which met the Student's needs under Prong II of the Burlington/Carter standard.

By way of relief, the Parent seeks to have the unpaid tuition for the 2021-2022 school year sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, "due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so"). I credit the Parent's affidavit as establishing that payment of the tuition upfront would be a financial hardship for the Parent and that he was unable to do so. (Parent Aff. 1 at ¶¶ 3-6; Ex. Q). Equity demands that the DOE fund the student's Private School tuition in this instance.

Turning to Prong III of the Burlington/Carter standard, even if a parent establishes a right to reimbursement or direct tuition payment under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, the district court may consider many factors, including, inter alia, whether plaintiff's unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether plaintiff should have availed herself of needbased scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the DOE, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, the Parent sent a timely TDN on August 21, 2022 notifying the DOE of their stated concerns with the IEP and program recommendations, and that based on the failure of the DOE to provide an appropriate IEP and placement for the 2021-2022 school year, the Parent was placing the Student at the Private School and seek prospective funding for the cost of his education for the 2021-2022 school year. (Ex. D). I find no issue with the reasonableness of the costs, including tuition of $53,700, associated with the Private School. (Ex. E) The student attended the Private School during the year at issue. (Ex. H). I find that the weight of the evidence establishes that the Parent cooperated with the DOE and its CSE's efforts to develop an IEP and recommend a program and placement for the 2021-2022 school year. (See Parent Aff. 1 and Ex. D) Overall and after considering the record at hearing, I find that the equities support the Parent's claim for tuition direct funding.

At the hearing, the DOE Representative requested that the portion of the Private School tuition devoted to religious studies be excluded from any tuition award made. The Parent Representative objected to any reduction in tuition awarded on such basis, but argued in the alternative that any such reduction be limited to 19 percent, the portion of the weekly school schedule devoted to religious instruction. (See Closing Briefs, IHO Exs. IV & V). Here the full school week ran from 9 a.m. to 4:30 p.m. Monday through Thursday and 9 a.m. to 12 p.m. on Friday. The full school week was accordingly 33 hours long. Religious instruction took place Monday through Friday from 9 a.m. to 10:15 a.m., which comprised 6 hours and 15 minutes. (Private School Teacher Aff. at ¶¶ 15-24) Based on such schedule, 18.94% of the school day was devoted to religious studies. Therefore the Parents are entitled to have 81.06% of the full tuition of $53,700.00 directly funded to the Private School, or $43,529.22.

Compensatory Relief

The remedy for a school district's failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district's failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can "grant such relief as the court determines is appropriate", limited only by the restriction that "the relief is to be appropriate in light of the purpose of the Act" (Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)), "a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies" (Doe v. East Lyme, 790 F.3d at 454).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a "replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district's failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019). "[B]oth educational placement and additional services may be necessary to provide a particular student with a FAPE, and the award of tuition reimbursement in this case does not necessarily mean that additional services, such as home-based ABA, are inappropriate." VW v. N.Y.C Dep't of Educ., 21 Civ. 6317 (S.D.N.Y. Aug. 17, 2022).

As set forth above, I have found that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year. I also note that the June 17, 2021 IEP expressly states that the Student "has a 1:1 SEIT for many parts of the day in order to maintain productivity at school" (Ex. 1-3), but fails to explain why such related service was not continued as a recommended special education service. I find that an award of additional services would place the Student in the position he would have been in had the DOE complied with its obligations under the IDEA.

I credit the testimony of the Psychologist that based on her neuropsychological evaluation of the Student (Ex. O), it is her professional opinion that the Student continue with his 1:1 special education instruction/ABA services and related service mandates of OT and S/L. (Psychologist Aff. at ¶¶ 21-22). The Psychologist found in June 2021 that the Student's current mandates of at least 20 hours of 1:1 SEIT/ABA services and supportive therapies and testing considerations should continue. (Ex. P). I also credit the testimony of the S/L Pathologist, who stated that it is her professional opinion that the Student requires a continuation of his after school S/L services four times a week for 30 minutes for a 12-month mandate in order to prevent regression and a lack of skills, and that such S/L services should occur after school to avoid taking the Student out of class, where he does well with his classmates and is able to grow academically during the school day. (T p. 45 L 21 to p. 46 L 14). I also credit the testimony of the SEIT, who testified regarding her work with the Student for the 2021-2022 school year that in her professional opinion the Student made progress with the SEIT services she provided, and continues to require at least 20 hours per week of individual SEIT services. (SEIT Aff. at ¶¶ 8-10; Ex. J).

Transportation

The June 17, 2021 IEP recommended that the DOE provide special transportation services consisting of transportation from the closest safe curb location to school. (Ex. 1-21). However, the DOE did not provide such special transportation services for substantial portions of the 2021-2022 school year as detailed by the Parent. (Parent Aff. 2 at ¶¶ 4-10). The Parent incurred total out of pocket expenses for transporting the Student to and from school during the 2021-2022 school year of $3,020.00, as calculated for every school day that the DOE failed to provide required transportation services during the months in question. (Id. at ¶¶ 11-32). I credit the Parent's evidence that they spent a total of $3,020.00 to transport the Student to and from school during the 2021-2022 school year on days that the DOE failed to provide mandated special transportation services, and therefore find the Parent is entitled to be reimbursed for their out of pocket expenses to provide such transportation services.

Unpaid Invoices to 2021-2022 School Year Pendency Service Providers

The Parent seeks direct funding from DOE for outstanding payments owed by the DOE to the Student's SEIT and S/L pendency providers for the 2021-2022 school year. (Parent Aff. 1 at ¶ 7). The pendency orders for Case No. 194966 (Ex. C) and this case (Ex. I), both provided that the DOE directly provide the Student with pendency services of 20 hours per week of SEIT services and 1:1 S/L therapy four times per week for 30 minutes, and were in effect during the 2021-2022 school year. (Parent Aff. 1 at ¶ 10). However, the DOE did not directly provide such services as ordered, and the Parent obtain the pendency services through private providers, who have not received payment for all invoices submitted to the DOE for the S/L and SEIT services provided during the 2021-2022 school year. (Id. at ¶¶ 12-13). It is well settled that IHOs do not have authority to enforce prior decisions rendered by administrative hearing officers (see Educ. Law §§ 4404[1][a]; [2]; see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (noting that IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court). However, here the Parent is not seeking enforcement of the prior pendency orders, which required the DOE to directly provide pendency services during the 2021-2022 school year, but seeks direct funding of unpaid invoices to the private pendency providers they engaged when the DOE failed in its obligation to directly provide the pendency services ordered. At the hearing the DOE did not dispute the Parent's claims in this regard. Given the underlying FAPE violation for the 2021-2022 school year, this is not an instance of the Parent seeking enforcement of the prior orders, but rather an award of DOE funding of the pendency services provided by the Parent's private providers to remedy the DOE's failure to implement the pendency services during the 2021-2022 school year, and is therefore appropriate relief. See SRO Appeal No. 22-132 (December 9, 2022) at p. 10-12.

Section 504

In the DPC, the Parent alleged a violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) by adopting and implementing systemic and blanket policies regarding special education service delivery that have affected the services offered to the Student. (Ex. A-2). To the extent that the Parent asserts general claims of a FAPE violation under Section 504, the fact that the DOE rested without providing any evidence or explanation as to whether it offered the Student a FAPE under the IDEA is an admission against interest regarding the Student's Section 504 entitlements. Therefore, and to the extent the Parent has alleged a general failure to provide FAPE to the Student under Section 504, I find that such has merged with the DOE's failure to provide the Student a FAPE under the IDEA. With respect to allegations of systemic violations, I find that I lack jurisdiction to adjudicate such claims. The Supreme Court has held that, "[w]hen a plaintiff initiates an action that "seek[s] relief for the denial of a [free and appropriate public education]," which is "the only 'relief' the IDEA makes 'available,'" plaintiff must follow the IDEA's exhaustion procedures regardless of whether the action is filed "under the ADA, the Rehabilitation Act, or similar laws[.]" Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 137 S. Ct. 743, 752, 754 (2017) ("[I]n determining whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff's complaint." … "[I]f, in a suit brought under a different statute, the remedy sought" is not covered by the IDEA, "then exhaustion of the IDEA's procedures is not required."). One potential basis for futility is where a plaintiff alleges "systemic violations that could not be remedied by local or state administrative agencies 'because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process.'" Id. (quoting J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004)). While I possess the authority to enforce established regulations, policies and procedures, I lack "the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch. Dist., 918 F.Supp. 772, 781 (S.D.N.Y. 1996). Accordingly, "requiring a parent to exhaust his administrative remedies when he is challenging a generally applicable policy or procedure would be futile." Id. See also Moskowitz v Great Neck Union Free Sch. Dist., 2021 US Dist LEXIS 146397, at *24-25 (EDNY Aug. 4, 2021, No. 20-cv-1659 (KAM)(SIL)). In considering the above, and in light of my finding that the DOE has failed to meet its burden concerning the 2021-2022 school year, I find no reason to require the Parent to continue to exhaust administrative remedies concerning the allegations that the DOE has policies and practices which intentionally or recklessly discriminate against students with disabilities, and the Student in particular. I decline to exercise jurisdiction without prejudice to the Parent's right to bring such claims under Section 504 in a different venue.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The Parent's claim for direct tuition funding for the Student's unilateral placement at the Private School is GRANTED for the 2021-2022 school year as follows: The DOE shall, within fifteen (15) days of receipt of this ORDER, directly fund the Student's tuition at the Private School in the amount of $43,529.22 for the 2021-2022 school year; and

2. The Student's special education program for the 12-month extended 2021-2022 school year shall include: 20 hours per week of 1:1 special education teacher support services (SETSS); four 30 minute sessions per week of 1:1 S/L therapy; three 30 minute sessions per week of 1:1 OT; three 30 minute sessions per week of 1:1 PT; and special education transportation including limited travel time in a small air conditioned school bus/minivan; and

3. The DOE shall fund, as compensatory relief, the following services for the 12-month extended 2021-2022 school year: 20 hours per week of home based/after school 1:1 special education teacher support services (SETSS); and four 30 minute sessions per week of home based/after school 1:1 S/L therapy by qualified providers of the Parent's choosing at market rates, and the DOE shall issue payment directly to the providers chosen by the Parent within 30 days of a copy of the invoice; and

4. The Parent's claim for reimbursement for the Student's transportation to and from school on days the DOE failed to provide mandated special transportation services is GRANTED for the 2021-2022 school year as follows: The DOE shall, within fifteen (15) days of receipt of this ORDER, reimburse the Parent in the amount of $3,020.00 for out of pocket transportation costs for the 2021-2022 school year; and

5. The Parent's claim for direct funding to the Student's pendency providers for the 2021-2022 school year is GRANTED as follows: The DOE shall, within fifteen (15) days of receipt of this ORDER, directly fund all unpaid outstanding invoices submitted by the Parent's private pendency providers for SEIT and S/L services provided to the Student under the pendency orders were in effect during the 2021-2022 school year.

SO ORDERED

DATED: March 9, 2023

__Philip Sturges____________

Philip P. Sturges

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.