New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583871 – NYC: 235554

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

STUDENT, by and through his/her PARENT(S),

Petitioner(s),

- against -

THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

Record Close Date: 04/22/23

FINDINGS OF FACT AND

DECISION

HASHIM RAHMAN, Hearing Officer:

The Petitioner is the parent of a Student who requires special education services. (See Pet’r’s Ex. A at 1.) The Petitioner filed a due process complaint dated August 30, 2022, against the New York City Department of Education (“DOE” or Respondent). (See id.) In the Complaint, the Petitioner asserts that the DOE denied the Student a free and appropriate publication education (or “FAPE”) by, inter alia, failing to develop an appropriate educational program for the 2020-2021, 2021-2022, and 2022-2023 school years. (Id. at ^[1]; see also, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.)

The undersigned hearing officer was appointed for this matter on October 5, 2022. ^[2] Thereafter, a prehearing conference was held on October 21, 2022; and a status conference was held on October 28, 2022. (See Hr’g Tr. 1-29.) Following that, a due process hearing was held over the course of December 15 of 2022, and January 17, February 15, March 7, and April 3 of 2023. (See id. 31-46, 48-399, 409-463.) All parties were represented during the due process hearing. (See App.) A list of documentary evidence submitted is attached to this decision. (See id.)

THE DUE PROCESS COMPLAINT

The Student at issue has been diagnosed with severe autism spectrum disorder. (Pet’r’s Ex. A at 2.) He is nonverbal; he has cognitive delays; and he has significant deficits in communication and behavior regulation. (Id.) The Student has been receiving special education services from an early intervention stage. (Id.)

The Petitioner alleges in her Complaint that the DOE failed to adequately evaluate the Student; it failed to develop a valid IEP;^[3] and it failed to provide an appropriate placement for the three years at issue. (Id. at 2.) She asserts that IEP meetings were held September of 2020, July of 2021, and June of 2022 to develop programs for the said three years. (Id. at 5.) As alleged, the DOE ignored information provided in connection with the said meetings when making recommendations. (Id. at 6.) The Petitioner further asserts that “[a]t the meetings” the DOE “recommended a 6:1:1 Special Class” for the Student, and she objected to this recommendation because the Student required one-to-one instruction and the application of an applied behavior analysis (“ABA”) methodology. (Id. at 6, 8.) She also claims that the DOE never reevaluated the Student; the IEP goals were vague and not sufficiently measurable; and the IEP teams were not properly constituted. (Id. at 10, 12.)

Furthermore, the Petitioner states that the Student has been “OUT OF SCHOOL SINCE JULY OF 2020.” (Id. at 2.) She further states, “As of July 2020, [the Student’s] school program was terminated and not continued through the CSE.” (Id.) Further into the Complaint, it is stated that the Petitioner could not afford the financial burden of school tuition during the 2020-2021 year. (Id. at 8.)

Nonetheless, the Petitioner did receive educational placement recommendations [from the DOE] for the 2021-2022 and 2022-2023 school years. (Id. at 3.) However, the Petitioner determined that such placements were not adequate for the Student’s needs. (Id.) The Petitioner “gave notice to the DOE of its failure to provide [the Student] with an appropriate program and placement by letter through their [sic] prior attorney sent in July and August of 2022 to the CSE.” (Id. at 4.)

The Petitioner also asserts that the DOE violated Section 504 of the Rehabilitation Act of

1972. (See id. at 1, 13-15.) In support of this, the Complaint states that the DOE “applied blanket policies to decisions about his IEP and placement and to the development of autism programs in New York City.” (Id. at 13.) It is further alleged that the DOE’s recommendations were made “pursuant to illegal blanket policies and practices concerning children with autism.” (Id. at 14.) As relief, the Petitioner seeks, inter alia, “Funding for tuition at Manhattan Children Center and 20 hours of 1:1 home based ABA per week at home and school, speech, OT, PT; All mandated for 52 weeks per year[;] . . . . [r]elated services of PROMPT speech therapy, OT, PT, and special education small bus transportation and a 12-month school year for 52 weeks per year[;]” parent training, assistive technology, and reimbursement for expenses. (Id. at 16-17.) The Petitioner further seeks “[c]ompensatory services, make up services and equitable additional services to make up for the lack of FAPE in the 2020-2021 and 2021-2022 and 2022-2023 school years as well as any delay in the provision of pendency services.” (Id.) The Petitioner claims that “[t]hese services should be sufficient to place [the Student] in the position he would be in if he had not been denied FAPE and/or his pendency rights had not been violated and should include 1:1 ABA services, parent training, Prompt speech and language therapy, Assistive Technology and related services, and any other services the IHO deems appropriate.” (Id.)

Though not challenged by the DOE, it should be noted that many allegations in the Complaint are vague and lacking in specificity. (See Pet’r’s Ex. A ¶¶ 8, 16, 31, 57, 77.) Though the pleading pertains to three years, certain claims are not coherently tied to time periods. (See id. ¶¶ 32, 34, 38, 39, 42, 55, 57, 63, 79.) The Complaint also contains an exceptionally exhaustive list of relief items, many of which are redundant and overlapping when paired with the facts at issue. (See id. ¶¶ 85(1)-85(3).)

THE DUE PROCESS HEARING

I. Facts and Assertions by the DOE At the hearing, the DOE did not present any documents or witnesses. (See Hr’g Tr. 93.) Counsel argued that equities favor the DOE because the “parent kept the student from schooling for the 2020-2021 and 2021-2022 school years.” (Id.) Counsel explained that the Student likely would not have regressed if he remained in school. (Id. at 93-94.) It was further contended that the Petitioner has not established that compensatory education is warranted here. (Id. at 384-385.)

II. Facts and Assertions by the Petitioner The Petitioner presented twenty-three documents and five witnesses. (See App., Hr’g Tr. 65, 168, 302, 408.) Counsel asserted that a FAPE was not provided for the three years at issue because the DOE failed to offer a suitable placement, it failed to develop appropriate programs, and it failed to rely on sufficient evaluative data. (Hr’g Tr. 80-86.) Counsel also asserted that the DOE violated Section 504 [of the Rehabilitation Act] by adopting and implementing impermissible blanket policies. (Id. at 81.) The Petitioner’s proposed solution is to “continue pendency in the program that he currently receives; receiving funding from the [DOE] for tuition at [[REDACTED]]; 10 and 20 hours of one-to-one home-based ABA per week at home and at school; speech, OT, PT, all mandated 12 for 52 weeks a year, including special education transportation; a final order directing the DOE to fund tuition for the [[REDACTED]], one-to-one ABA program; a final order of home-based one-to-one ADA for 20 hours per week; related services, a PROMPT speech therapy . . . [etc.]” The Petitioner also requested compensatory education in the form of reimbursement for payments made to a Speech Therapist in 2021 and

2022. (See Hr’g Tr. 451, IHO Ex. I.) The documents presented by the Petitioner include the Complaint, a 2022 ten-day notice, a 2022 prior written notice, a pendency implementation form, progress reports, behavioral assessments, academic assessments, a 2021 evaluation, a tuition agreement for [REDACTED], and payment receipts. (See App.) The Petitioner testified that the Student has never attended public school. (Hr’g Tr. 461.) She said that the Student attended the private programs at [REDACTED] and [REDACTED] since 2015. (Id. at 453-462.) Such programs were funded or reimbursed by the DOE. (Id.) She explained that the Student did not attend [REDACTED] during the 2020-2021 and 2021-2022 school years because she could not afford to front the tuition payment. (Id. at 456-459.) She also said that the Student remained at [REDACTED] for all of the said years. (Id. at 460.)

The Director for [REDACTED] testified that the Student has made progress in the private school program and the data collected shows an overall ascending trend in his relevant skills. (See id. 242-245.) The BCBA testified that [REDACTED] has been an appropriate educational setting that has met the Student’s academic, communication, and behavioral needs. (Pet’r’s Ex. N at 3.) She further stated, The program includes an emphasis on verbal behavior, self-management and independent leisure skills, and social skills, as well as academic instruction.

A transdisciplinary model ensures consistency and collaboration across the departments of speech and language therapy, occupational therapy and the student's classroom. [REDACTED] also has a sensory gym, as well as opportunities for social interactions with neuro-typically developing peers.

Parent training and education is also a part of the [REDACTED] program, as well as opportunities for other family members to receive support and educational opportunities (e.g., Grandparents Day, Sibling Day, etc.) (Id.)

The Supervisor at [REDACTED] testified via affidavit that the Student “displays deficits in communication skills, social and leisure skills, activities of daily living and self-management skills.” (Pet’r’s Ex. T at 5.) She further stated that the Student requires a one-to-one program, like the one at [REDACTED], with a need for a “highly reinforcing environment with individualized programming to make meaningful progress towards age-appropriate skills.” (Id. at 12.) She explained, “[REDACTED]’s comprehensive program offers full day center-based educational services in an ABA-based model with related services provided using a transdisciplinary approach.” (Id. at 2.)

With respect to services outside of [REDACTED] and [REDACTED], the Speech Pathologist testified via affidavit that in 2020, she “I resumed sessions with [the Student] involving intensive PROMPT (Prompts for Restructuring Oral Muscular Phonetic Targets) methodology and oral motor therapy, which have proven to aid in the development of speech for single phonemes and words.” (Pet’r’s Ex. Y at 1.) She said that the Student responds to PROMPT therapy. (Id.) She added that the Student has been responding to questions with more consistency, and he has learned to articulate concerns with less support. (Id. at 2.)

ANALYSIS

I. General Legal Framework for FAPE Claims Under the IDEA, an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . .” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). A FAPE should emphasize “special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living." Id. § 1400(d)(1)(A).

When addressing whether a FAPE was provided, two factors should be considered: 1) whether the IEP was developed according to the IDEA’s procedural requirements, and 2) whether the educational plan set forth in the IEP was reasonably calculated to confer a substantive educational benefit on the student. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). Under the IDEA, if procedural violations are alleged, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(ii). The school district bears the burden of proving that it provided a FAPE to the Student. See EDUC. L. § 4404(1)(c).

a. Tuition Reimbursement

If a FAPE has not been provided to a child with a disability, a parent may unilaterally place that child in a private school and seek an award for reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii); see also, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"). The determination of whether a parent is entitled to reimbursement is based on the three-prong Burlington/Carter test, "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014).

b. Compensatory Education

A parent may also request compensatory education for a deprivation of FAPE. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota Cent. School Dist., 979 F. Supp. 147, 151 (N.D.N.Y. 1997) “Compensatory education is prospective equitable relief” that seeks to remedy earlier deprivations in the child’s education. Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).^[4] “Where the parent has not unilaterally enrolled a child in a private school, and thus does not seek retroactive reimbursement, the child may be entitled to compensatory education.” IndividuallyM v. Kingston City Sch. Dist., 1:14-CV-0542 (GTS/DJS), at *29 (N.D.N.Y. Nov. 23, 2015). Compensatory education has been awarded to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See In re of Board of Educ of City School Dist, 16 A.D.3d 1142, 1143 (N.Y. App. Div. 2005) (finding it proper for an SRO to order a school district to provide "make up" services to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Student with a Disability, Appeal No. 09-111, 109 LRP 76689 (Nov. 20, 2009) (adding summer reading instruction to an additional services award).

II. FAPE

Before addressing relief, it is necessary to determine whether FAPE was provided to the Student. In the case here, the DOE did not present any documents, witnesses, or arguments on the issue of FAPE. (See Hr’g Tr. 93.) On account of this, I find that the DOE has failed to meet its burden of proof and it has failed to demonstrate that a FAPE was provided during the school years at issue. This means that the Petitioner’s general contention that the DOE did not design or provide adequate educational programs for the years at issue shall be accepted as true. However, more specific findings with respect to the composition of the IEP teams, evaluations, parent training, etc., cannot be made due to a lack of sufficient evidence or argument.

III. Compensatory Education Relief i. 2020-2021 and 2021-2022 School Years

In the present matter, all relief requested on account of the DOE’s deprivation of FAPE for the first two school years at issue must be deemed as a request for compensatory education. This is because for the 2020-2021 and 2021-2022 school years, the Petitioner does not appear to be seeking reimbursement for a unilateral placement in a private school or program. For instance, the only ten-day notice and enrollment contract presented is for the 2022-2023 school year. (See Pet’r’s Ex’s B, Q.) Furthermore, payment for private speech services obtained is requested as compensatory education rather than as reimbursement for a unilateral placement. ^[5] (See Hr’g Tr. 451.)

Nonetheless, compensatory education is an unwarranted remedy here. The Student has never attended public school. Rather, he has enrolled in private educational programs year after year and sought reimbursement or funding from the DOE.^[6] Thus despite the accepted claims of deficiencies in the IEPs themselves, the Student did not miss services that the DOE was obligated to provide through the programs it had recommended.

Also, the Third Circuit has held that “compensatory education is not an available remedy when a student has been unilaterally enrolled in private school.” P.P. ex rel. Michael P. v. West Chester Area School District, 585 F.3d 727, 739 (3d Cir. 2009). In its decision, the court emphasized that “record shows that [the student] has never been enrolled in public school. Therefore, compensatory education is not an available remedy.” Id. at 740. The Second Circuit has not explicitly ruled as such; however, the New York district court in Individually M v. Kingston City Sch. Dist. seemed to adopt this principle in holding that compensatory education is a remedy available for students not unilaterally enrolled in a private school. 1:14-CV-0542 (GTS/DJS) at *29.

In the present case, it seems that the Petitioner intended to enroll the Student at [REDACTED] during the said two years but that did not occur due to the reasons she expressed. (See Hr’g Tr. 456-459.) At the same time, the Petitioner did not enroll the student in public school for the two years he was not at [REDACTED] (though he did remain at [REDACTED]).

(Id. at 460-461.) In P.P. ex rel. Michael P, compensatory education was deemed unavailable where a student has never enrolled in public school. That principle should apply here where, even though there was ultimately no unilateral placement at [REDACTED], the Student had never been enrolled in a public school.

It should further be noted that compensatory education is a fact-based remedy tailored to meet the unique circumstances of each case. Here, it has been determined that the DOE did not provide a FAPE in designing its IEP and providing an adequate program. The Petitioner did not enroll the Student in the said public program, but she also did not enroll the Student in another program aside from [REDACTED]. (Id. 456-459.) The circumstances for this are understandable, but it would nonetheless be nearly impossible to separate the damage caused by the lack of a properly designed IEP from the damage caused from the Petitioner not enrolling the Student in an equivalent or better private program. This makes compensatory education an especially unsuitable remedy here.

ii. 2022-2023 School Year

The Petitioner also seeks compensatory relief for the 2022-2023 school year. By the time this school year had started, the Student had never attended public school and was enrolled in both [REDACTED] and [REDACTED]. As explained above, compensatory education is not a suitable remedy when a student has been unilaterally enrolled in a private school. As such, I find this remedy unwarranted under the circumstances of this case for the 2022-2023 school year.

IV. Tuition Funding Relief The Petitioner also seeks tuition funding for the Student’s unilateral placement at [REDACTED] during the 2022-2023 school year. For this, the Petitioner must prove that the unilateral placement was appropriate as per the the second prong of the Burlington/Carter test. See EDUC. L. § 4404(1)(c). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Id. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . .” Id., (quoting Rowley, 458 U.S. at 188-89).

Based on testimony and documents presented, including progress reports and the accounts by the Parent and the Director, the Petitioner has established that [REDACTED] was an appropriate private placement. (See Hr’g Tr. 242-255, Pet’r’s Ex’s F-G, X.) Despite instances of regression, there has been an overall trend of progress at [REDACTED]. (See Hr’g Tr. 242-255.) The Petitioner has shown that the Student was placed in an adequately-designed program that was tailored to his needs. Thus, the Petitioner has satisfied the second prong of the Burlington/Carter test with respect to [REDACTED].

Nevertheless, the Petitioner is seeking direct tuition funding rather than tuition reimbursement. (See Pet’r’s Ex. R.) To obtain such funding, a petitioning party must demonstrate an inability to pay tuition for the year at issue. In Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 428 (S.D.N.Y. 2011), the court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs - or will take years to do so - parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." Here, the Petitioner did explain that the Student was not enrolled at [REDACTED] in prior years because she could not front the tuition. However, the Petitioner has not asserted or set forth evidence establishing that she lacks financial resources to pay tuition at [REDACTED] for the 2022-2023 school year. (See Pet’r’s Ex. A, App.) Furthermore, I am reluctant to issue any order that would make funding or reimbursement dependent on further proof of payment or financial means, as that would leave the door open for the parties to argue over what is sufficient. Accordingly, the Petitioner’s request for tuition funding for [REDACTED] for the 2022-2023 school year is denied.

It should further be noted that the Petitioner did not present any contracts with [REDACTED], other providers, or other schools. The only contract in evidence showing a financial obligation is with [REDACTED] for the 2022-2023 school year. (See Pet’r’s Ex. Q.) As such, to the extent that the Petitioner has requested reimbursement or funding for other programs, such a request is denied for want of proof of a financial obligation.

V. Section 504 Claims Section 504 provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). To state a prima facie violation of Section 504, a plaintiff or petitioner must show that “(1) he is a ‘[disabled] person' under the Rehabilitation Act;

(2) he is ‘otherwise qualified' for the program;

(3) he is excluded from benefits solely because of his [disability]; and

(4) the program or special service receives federal funding.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014) (alterations in original) (quoting Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990)). Exclusion may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation.^[7] B.C. ex rel. J.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2nd Cir. 2016). Furthermore, claims under Section 504 require a showing of bad faith or gross misjudgment on the part of an administrator of services. See Scarsdale Union, 744 F.3d at 840-841.

Here, the Petitioner has not even attempted to make a prima-facie showing that the Student was excluded from benefits solely due to a disability. In fact, all references to Section 504 claims were made by counsel only in passing without any argument or reasoning. (See Hr’g Tr. 81, 392.) As such, claims under Section 504 are denied.

CONCLUSION AND ORDER

I find that the Student was denied a FAPE for the three school years at issue. However, I find that the relief requested by the Petitioner is unwarranted under the circumstances of this case. Accordingly, all claims for relief are hereby denied in full.

Dated: 04/22/23 SO ORDERED

HASHIM RAHMAN,

HEARING OFFICER

Sent via Email to All Parties

APPENDIX A – EXHIBITS BY PETITIONER

A. Exhibit Description Date Pages Impartial Hearing Request 8-30-2022 17 pages

B. Ten Day Notice 8-22-2022 3 pages

C. Prior Written Notice 6-29-2022 6 pages

D. DOE Pendency Implementation Form 9-28-2022 1 page

F. E FOFD - Case #193247 11-16-2020 26 [REDACTED] Progress Reports 18-19 SY 2018-2019 81 pages

G. [REDACTED] Progress Reports 19-20 SY 2019-2020 31 pages

H. [REDACTED] Progress Reports 20-21 SY 2020-2021 36 pages

I. [REDACTED] Progress Reports 21-22 SY 2021-2022 45 pages

J. [REDACTED] Behavioral Assessment & Apr-May Intervention Plan 2022 7 pages

K. [REDACTED] Behavioral Assessment & Feb-May Intervention Plan 2020 20 pages

L. [REDACTED] Goals 22-23 July 2022 10 pages

M. [REDACTED] Goals 22-23 2022 7 pages

N. BCBA’s affidavit 12-8-2022 6 pages

O. Clinical Behavioral Report 10-29-2019 13 pages

P. PALS Evaluation 5-17-2021 4 pages

Q. [REDACTED] Tuition Agreement Summary 9-7-2022 5 pages

R. [REDACTED] Tuition Affidavit 10-22-2022 1 page

S. Director’s Affidavit 1-9-2023 16 pages

T. Supervisor’s Affidavit 1-13-2023 12 pages

PARENT

X. Affidavit 2-14-2023 8 pages

Y. Speech Pathologist affidavit 2-14-2023 3 pages

Z. [REDACTED] Functional Behavior Assessment APPENDIX B – HEARING OFFICER EXHIBITS 12-2022 15 pages

EXHIBIT DOCUMENT DESCRIPTION DATE PAGE

I. Speech Therapy Expenses 07/06/2022 1 page

II. Uber receipts 09/23/2023 14 pages

APPENDIX C – TERMS AND REFERENCES [INTENTIONALLY OMITTED]

Footnotes

[1] Personally-identifiable information has been removed from this decision but is shown in the appendix.

[2] This matter was previously filed under case number 229386.

[3] IEP is an acronym for Individualized Education Program.

[4] More specifically, the Somoza court stated, “Compensatory education is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education.” (Internal quotations omitted.) The expiration of a child’s eligibility is not at issue here.

[5] Even if this was deemed as a reimbursement request for unilaterally-obtained private service, the Petitioner would not have been able to meet prong two of the Burlington/Carter test because speech services in the absence of an overall school program would not be deemed an adequate placement.

[6] In 2020 through 2022, the Student remained enrolled at [REDACTED], which has been characterized as an after school program, but did not continue enrollment at [REDACTED].

[7] The hallmark of a reasonable accommodation is effectiveness. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (“It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for effectiveness.”). The accommodation need not be perfect and it need not be one that is strongly preferred by a plaintiff or petitioner, but it still must be effective. Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 95 (2d Cir.2015). Given the “fact-specific” nature of the question of whether a measure to accommodate a student's disability is a reasonable accommodation, this determination “must be made on a case-by-case basis.” Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir.1996)