New York City Department of Education, Impartial Hearing Decision

[REDACTED] file copy.

Case Number: 586856 – NYC: 238232

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent

Record Close Date: March 16, 2023

Hearing Officer: Kenneth B. Lynch, Esq.

INTRODUCTION AND PROCEDURAL CASE HISTORY

This mater comes before the undersigned Impartial Hearing Officer (hereinafter “IHO”)

on Parent’s (hereinafter the “Parent”) Due Process Complaint, filed on September 14, 2022, (hereinafter the “DPC”). I was appointed on November 21, 2022. The DPC alleges that that the New York City Department of Education’s (hereinafter the “District”) Committee on Special Education’s (“CSE”) failed to offer Student a free appropriate (“FAPE”) for the 2021 – 2022 school year on procedural and substantive grounds for the Student who was unilaterally enrolled in the [REDACTED] Program (“[REDACTED]”) School for the 2021 - 2022 school year.

The due process hearings were held on February 7, 2023 and March 1, 2023 Each hearing was closed a hearing. Parent was represented by [REDACTED], Attorney for The Law Firm of [REDACTED], P.C.. Parent entered into evidence Exhibits A through U. The District was represented by [REDACTED], Agency Attorney for the New York City Department of Education. The District entered into evidence Exhibits 1 through 3.

NAMES AND TITLES OF THE PERSONS WHO APPEARED ON 02/07/2023:

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the District:

[REDACTED], Attorney

[REDACTED], Special Education Teacher & District Representative

NAMES AND TITLES OF THE PERSONS WHO APPEARED ON 03/01/2023:

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Program Director/Principal of [REDACTED]

For the District:

[REDACTED], Attorney

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200 et seq.

BACKGROUND

Student is a [REDACTED]-year-old child who has been classified by the CSE as a student with an Intellectual Disability. Student presents with delays in the areas of academics (specifically reading, writing, and mathematics), social/emotional skills, sensory functioning, receptive language, expressive language, pragmatic language, gross motor, and fine motor skills. Student is also diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and exhibits impulsive and maladaptive behaviors. His distractibility and low frustration tolerance impede his ability to progress in a classroom setting, especially when presented with challenging tasks. Exs. L, 1. The Student’s classification and eligibility for special education services were never in dispute.

The Parent unilaterally placed the Student in the [REDACTED] School for the 2021 – 2022 school year, and now seeks tuition reimbursement for the costs of the 2021 – 2022 private placement. The Parent contends that the District did not provide or offer the Student a FAPE for the 2021 – 2022 school year, and further contends that the [REDACTED] School placement was appropriate and that the equitable factors support the tuition reimbursement claim. The District representative stated, in her opening statement, that the District is contesting that it denied the Student a FAPE for the 2021 – 2022 school and also is challenging the appropriateness of the unilateral placement. Tr.-1: 41-42.

The merit hearings went forward in this case on February 7, 2023 and March 1, 2023. The Parent submitted an evidence package consisting of 21-documents, including testimonial affidavits serving as direct testimony of [REDACTED], Parent, and [REDACTED], Program Director/Principal of the [REDACTED] School. The District submitted an evidence package consisting of 3-documents and presented the testimony of [REDACTED], Special Education Teacher & District Representative.

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

ISSUES

1.) Did the District deny the Student a free appropriate public education (“FAPE”) for the 2021 – 2022 school year.

2.) Is the unilateral placement appropriate and reasonably calculated to enable the student to receive an educational benefit.

3.) Are there any equitable considerations that bar reimbursement.

4.) Whether or not there should be any deduction from a final award for the sectarian components of the Student’s schedule at the [REDACTED] School.

FINDINGS OF FACT AND DECISION

As stated previously, the District is contesting that it denied the Student a FAPE for the 2021 – 2022 school and also is challenging the appropriateness of the unilateral placement.

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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 Individualized Education Program (“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 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). School districts are obligated to provide the services listed in a Student’s IEP.

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 public 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).

Thus, if a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

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)). Since this case does involve a unilateral placement/tuition reimbursement claim, the District has the burden of proof, including the burden of production and persuasion, to demonstrate that it offered a FAPE to the Student for the 2021 – 2022 school year (Prong I), and the Parent has the burden of the proof, including the burden of production and persuasion to demonstrate that the unilateral placement was appropriate and reasonably calculated to enable the Student to receive an educational benefit (Prong II). The final consideration is the balancing of the equities (Prong III). In this [REDACTED], the hearing officer must examine the actions of the parents and school district to determine if there are any equitable considerations that bar reimbursement. Moreover, it is the district’s burden to prove that a parent acted inequitably. N.Y. Educ. Law § 4404(1)(c).

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, 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.,2007 WL 2982269 [Oct. 15, 2007].

The Parent raised multiple challenges to the committee on special education (“CSE”) actions and inactions prior to the filing of the due process complaint. Exs. A, B, C. 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). Here the District called no witnesses and presented no evidence or argument. The Second Circuit has reaffirmed the position that a school district must offer witness testimony to meet its burden of proof in an impartial hearing. See, e.g., L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect).

In addition, the Second Circuit has unequivocally held that the district cannot demonstrate that it offered a student a FAPE without demonstrating that the recommended public school placement can implement the student’s IEP. M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 244- 45 (2d Cir. 2015); B.P. v. N.Y. C. Dep’t of Educ., 634 Fed. Appx. 845, 848 (2d Cir.

2015) (summary order); see also 34 C.F.R. §§ 300.17(c), 300.116(b)(2); § 200.4(e)(7); K.R., 107 F. Supp.3d at 301; Scott v. N.Y.C. Dep’t of Educ., 6 F. Supp.3d 424, 444-45 (S.D.N.Y. 2014); D.C. v. N.Y.C Dep’t of Educ., 950 F. Supp.2d 494, 510-12 (S.D.N.Y. 2013); J.F. v. N.Y.C. Dep’t. of Educ., No. 12 Civ. 2184 (KBF), 2013 WL 1803983, at *7 (S.D.N.Y. Apr. 24, 2013); B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670 (S.D.N.Y. 2012). The district carries the burden of proving that the recommended program is appropriate; it cannot be assumed that the district’s program is appropriate in the absence of evidence to the contrary. To do so would erroneously shift the burden of proof to the parent. See B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 677 (S.D.N.Y. 2012). Thus, the district is not absolved of its responsibility to provide evidence to counter allegations made by the parent regarding the placement’s inappropriateness.

Before the issues in this case can be decided, we must first have a clear understanding of the Student and his unique array of needs and challenges. To begin with, Student was enrolled in the [REDACTED] School for the 2020 – 2021 School Year, and this case arose out of the District’s attempt to place the Student in a public school for the 2021 – 2022 School Year based upon the CSE’s reevaluation of the student that culminated in the IEP, dated June 28, 2021. Exs. 1, 2, 3, B, C. Accordingly, the District did not have first-hand knowledge of how the [REDACTED] School had tailored its program to address the Student’s complex behavioral and social-emotional needs. In addition, the mere recitation of the Student’s special education classification and his various diagnosis is not sufficient to understand the challenges that the Student presented to the [REDACTED] School at the beginning of the 2020 – 2021 School Year. The best description of the Student at the beginning of the 2020 – 2021 School Year and the way that the [REDACTED] School addressed his individual needs, is provided in the following exchange by and between the IHO and Ms. [REDACTED], Program Director/Principal of [REDACTED]. Tr.-2: 143-145.

HEARING OFFICER LYNCH: Okay. So I want

3 to turn to the -- I think one of the big issues

4 that we have here with this particular student has 5 to do with -- actually, it's in number 12, at the 6 beginning, where it says that his behavioral and 7 social-emotional needs must first be addressed in 8 order to be able to get to the -- to be able to 9 work with him to address his other needs. Could

10 you talk about that and this issue of how [REDACTED]

11 addresses and has tailored a program for his

12 behavioral and social-emotional needs?

13 MS. [REDACTED]: Yes. So if -- if it's okay,

14 I would like to start this by describing [REDACTED]

15 at the beginning of the year, because I think that

16 will help –

17 HEARING OFFICER LYNCH: (Interposing)

18 That's okay. Yeah. You can do that any way you

20 MS. [REDACTED]: That's okay?

21 HEARING OFFICER LYNCH: Yeah.

22 MS. [REDACTED]: Okay. Okay. So when -23 when you meet [REDACTED], or when you met [REDACTED] at 24 the beginning of that year, we're talking about a 25 child, or a young man, of very large stature: a 1 tall boy; a broad boy; someone who, even if he'd

2 probably be the sweetest, kindest, nicest kid would 3 make some other students in his class or his age

4 take two [REDACTED]s back and make sure that they felt

5 safe. He towered over everybody, and that was kind

6 of the first look, the visual-physical look that 7 you'd get at [REDACTED].

8 He was a young man, I'd say, with a very

9 big chip on his shoulder, very much from a lack of 10 confidence, very much from a lack of believing that 11 he could be successful and do things. His overall, 12 I guess to some degree, street smarts or awareness

13 of what goes on in the world very much preceded or 14 was way ahead of his academic and his social

15 abilities so that he kind of felt that he's this 16 mature young man, but in many ways was being

17 treated either, the way he would perceive, as a 18 younger child or as a baby or that he just wasn't

19 successful academically and didn't want to feel

20 that he was behind in academics compared to others

21 that he knew.

22 He knew he wasn't successful in social

23 interactions. He knew that he didn't really have 24 friends or make friends easily. And this impacted

25 his behaviors very much. He also had a very

1 difficult time understanding others' perspectives.

2 So if he felt that something should have been done

3 one way and someone else did it another way, then

4 the day could've ended, because it didn't go his

5 way and no one else's feelings mattered. Very

6 sensitive young man, so if somebody literally

7 looked at him the wrong way, he would turn around

8 and say: he stared at me; he thinks I'm ugly; and 9 he hates me, and now I'm going to have no friends; 10 where there would be no basis for it other than

11 someone actually looking his way when he came into

12 the classroom.

13 So we saw that there was no way that he

14 was going to be successful, and he wasn't

15 successful in a classroom area, because everything

16 upset him; everything made him angry. He would 17 just storm out of a classroom. He'd shove a desk

18 or a chair. He'd hit somebody. He'd curse. And 19 then it made everybody stay away from him more. So

20 the social problems were aggravated and impacted.

21 And then he couldn't finish the task to completion, 22 because he wouldn't, because he would just storm

23 out or say I'm done or curse or whatever other

24 behaviors were taking place.

25 So we addressed this in a number of ways.

1 First of all, we gave him a feeling that he was 2 being listened to so that if he needed time to 3 speak to a staff member, because we had this high

4 staff-to-student ratio where it was safe for a 5 staff member to walk out with him, instead of just

6 telling him: what you're doing is wrong; you need

7 to stop right now. Yeah, we can do that. Those

8 behaviors need to be stopped, but it would be a 9 temporary stop, and then it would just start again

10 another day. And our goal was to help him

11 understand that the cause and effect of his

12 behaviors and things that he does, he could

13 actually help with support, and then his life could

14 change, because then he could make friends, and he

15 could behave appropriately with other people.

16 And that's really the goal of what we do

17 In school, of not just fixing something

18 temporarily, of helping a child further himself for 19 his life so that when he was able to walk out with 20 a staff member and say, This is how I'm feeling, 21 and be prompted to say: okay, [REDACTED], you're

22 very angry right now; what do you think happens

23 when you pushed that desk inside; would somebody

24 want to be your friend by recess, or would they be 25 afraid of you?

1 And he had the support of taking that 2 [REDACTED] back, thinking about his behaviors, thinking

3 about the cause and effect of it, understanding

4 others' perspectives while feel that he was being

5 listened to, and he could say: I did it because I

6 felt this way, or I did it because I felt

7 embarrassed, or I did it because he made me angry.

8 And he was given the opportunity to discuss that 9 with upper staff, such as myself as well, which

10 also gave him a feeling of: I'm important; I'm a 11 semi-adult, or I think I'm a semi-adult; and I will

12 actually have somebody who will listen to me.

13 In addition, the physical behavior chart

14 that he had rewarded him for working hard and 15 putting effort into engaging in those more positive

16 and appropriate behaviors. And everybody likes to 17 feel rewarded and acknowledged. And this

18 definitely helped him feel better about himself.

19 On top of that, the small class size

20 definitely mitigated the chances of him getting

21 upset with somebody or feeling not confident.

22 Splitting the class up into smaller groups for 23 learning helped him not feel embarrassed in front

24 of more people if he wasn't sure of something, and 25 get that individualized instruction to help him

1 feel more confident which then also impacted his

2 behaviors.

The District relied upon the testimony of [REDACTED], Special Education Teacher and District Representative, to meet its burden of proof on Prong I. Tr.-1: 44-94. However, the testimony of Ms. [REDACTED] was not sufficient for the District to prove, by a preponderance of the evidence, that it had provided a FAPE for the 2021 – 2022 School year for the following salient procedural and substantive reasons. To begin with, the CSE relied almost exclusively on the [REDACTED] Progress Reports in its reevaluation of the Student for the 2021 – 2022 School Year, but these reports were not a substitute for an evaluation. § 1414(a)(2)(B)(ii), (d)(1)(A)(III), (d)(B)(ii). Prior to the June 28, 2021 review, the CSE failed to obtain and consider sufficient clinical data to base its recommendations on. Moreover, the District did not understand that the Student’s progress was dependent upon the continuation of the same or similar level of supports and services that [REDACTED] was providing. In addition, the CSE never conducted a classroom observation, which would have informed the CSE that the Student’s ongoing progress would cease without the same or similar supports and services being provided. Inexplicably, the CSE recommended a 12:1+1 program, in a large school, with no Behavioral Intervention Plan (“BIP”) based primarily on the [REDACTED] Progress Reports. The Student, however, was making progress in a 9:1+2 class with a detailed BIP that was being implemented daily by [REDACTED] in a smaller class environment that was regularly split into even smaller groups or 1:1 instruction as required by the individual needs of the Student. Exs. T, U. Furthermore, the CSE failed to conduct a Functional Behavioral Assessment (“FBA”), as required by State and Federal law. State and Federal regulations require a Functional Behavioral Assessment be conducted “for a student whose behavior impedes his or her learning or that of others.” § 200.4(b)(1)(v); § 200.4(d)(3); 34 C.F.R. § 300.346(a)(2). Based upon the description of the Student that is provided above from Ms. [REDACTED], the Student clearly required an FBA. The CSE also failed to create a BIP as well as a vocational assessment with post-secondary goals even though both were required by State and Federal law for Student. Finally, the District provided no testimony or other evidence to demonstrate that the recommended 12:1+1 district 75 placement would be appropriate and specifically address Student’s needs. Therefore, for the reasons stated above, I find that the District failed to offer Student a FAPE for the 2021 – 2022 School Year.

Accordingly, I also find that the Parents have prevailed on the first (Prong I) of the three Burlington/Carter criteria for tuition reimbursement.

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]. 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. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

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' 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, Parent 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).

The District presented no evidence to challenge the Parent’s contention that the [REDACTED] School was an appropriate program and placement for the Student for the 2021 – 2022 school year. In fact, the testimony of Ms. [REDACTED] to support the District’s Prong I burden of proof relied extensively on the [REDACTED] Progress Reports, and Ms. [REDACTED] made numerous references to the progress the Student was making at [REDACTED] in her testimony. Tr.-1: 47-75. Although the District did not meet its Prong I burden of proof, Ms. [REDACTED]’s testimony actually removes any doubt that the Student was making meaningful progress at the [REDACTED] School and that this placement was appropriate for the Student. Indeed, the Parent and Ms. [REDACTED] presented detailed and comprehensive affidavit and oral testimony. In addition, the Parent submitted substantial documentary evidence in support of her position that the [REDACTED] School program and placement was appropriate, that it provided a unique and specialized program that was individualized to meet the Student’s needs, and that the Student made educational progress. Exs. D, E, F, G, H, I, J, K, L, N, O, P, Q. I credit the testimony of both witnesses, and I find that their testimony to be persuasive. Exs. T, U; Tr.-1: 108-116, Tr.-2: 127-159.

The overwhelming testimony and documentary evidence in this case clearly demonstrates that the Student as making meaningful progress across all domains at the [REDACTED] School. Ms. [REDACTED] testified that Student’s disruptive behaviors decreased in frequency from daily to approximately twice a month through the implementation of the school’s BIP plus the support from a small class size Tr.-2: 147-148. Ms. [REDACTED] also testified that the Student’s social-emotional progress enabled Student to make measurable gains in reading, writing and math as well. Tr.-2: 151-153. In addition, Ms. [REDACTED] testified that the [REDACTED] School also provided the Student with a formally taught pre-vocational training activities like kitchen, culinary, food prep skills; and shopping skills; and general communication areas; office-related skills; and workshop-related skills. Tr.-2: 154-156. Ms. [REDACTED] further explained that the Student had opportunities to interact with mainstream peers once a month during activities such as music programs and baking classes. TR.-2: 157. Based upon the overwhelming testimony and documentary evidence in this case, I find that the [REDACTED] School provided an environment that enabled the Student to make meaningful progress toward his individual academic and related service goals across all domains for the 2021 – 2022 School Year.

I, therefore, find that the record clearly establishes that [REDACTED] School was an appropriate placement for this Student for the 2021-2022 school year and that the Student made meaningful progress at the [REDACTED] School. Accordingly, I also find that the Parent has, therefore, prevailed on the second (Prong II) of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges on whether the cost of the private placement was unreasonable and whether or not the parent cooperated with the CSE. The District did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds.

The only confirmation found in the record concerning the cost of the [REDACTED] School is found in Parent Exhibits P and R, which list the cost of the private placement tuition for the 2021 – 2022 school year at sixty-nine thousand ($69.000.00) dollars per year. There is no testimony or documentary evidence from the District to dispute the reasonableness of this cost. In addition, Parent Exhibit S seems to indicate that this placement is well beyond the Parent’s financial means and was chosen solely as a place that could best assist her son. Accordingly, I find that the cost of the [REDACTED] School is not unreasonable based on a lack of any evidence in the record to the contrary.

The record shows that the Parent fully cooperated with the CSE’s efforts to develop educational recommendations for her son for the 2021-2022 school year and that the Parent requested, in writing, that the CSE provide an appropriate program and placement to her son prior to the beginning of the school year. Exs. B, C. The purpose of the IDEA's requirement that parents reject a school district’s recommendations in writing is to give the district an opportunity to minimize its financial exposure by addressing parental concerns. J.S. v. Scarsdale Union Free Sch. Dist., No. 09-CV- 9571, 2011 WL 5925309 (S.D.N.Y. Nov. 18, 2011). In this matter, the Parents notified the District of their concerns regarding the District’s recommendations through a timely 10-day notice, and sought, unsuccessfully, to get information from the CSE. Exs. B, C. Thus, the record fails to show that the Student’s parent acted unreasonably such that tuition reimbursement should be denied. See N.R., 2009 WL 874061, at *6-7.

Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition reimbursement for the 2021-2022 school year. The Parent has, therefore, prevailed on the third of the three Burlington/Carter criteria (Prong III) for tuition reimbursement. Having prevailed on all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement for the cost of the Student’s 2021-2022 [REDACTED] School private placement.

The final issue to be determined is whether or not there should be any deduction from a final award for the sectarian components of the Student’s schedule at the [REDACTED] School. To begin with, the [REDACTED] School is organized as a religious school. While the Establishment Clause of the United States Constitution prevents a state from enacting laws that have the purpose or effect of advancing or inhibiting religion, the Supreme Court of the United States draws a consistent distinction between government programs that provide aid directly to the religious schools and programs or true private choice in which government aid reaches religious school only as a result of the genuine and independent choices of private individuals. This case involves the later situation and not the former. The law supports funding for all aspects of a program, secular or non-secular, that has been selected by private individuals as the United States Constitution’s Establishment Clause does not bar a decision requiring the district to fund the total costs of a unilateral placement pursuant to the IDEA. Accordingly, the case law precedents clearly set forth that the IDEA provisions regarding the payment for a sectarian private school pass the “Endorsement Test” proffered in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), as the IDEA has a secular purpose. L.M. v. Evesham Township Bd. of Educ., 256 F. Supp.2d, 290 (D.N.J. 2003). See also, Application of a Child with a Disability, Appeal No. 96-14 (holding that tuition reimbursement for a sectarian school does not violate the Establishment Clause as it passes the tripartite Lemon v. Kurtzman test, 403 U.S. 602 (1971)). The District is seeking a pro-rata deduction from any final award for the 30-minute [REDACTED] period each morning Monday through Sunday and one 15-minute [REDACTED] period in the afternoon Monday through Thursday. Ex. O. Ms. [REDACTED] testified that both the [REDACTED] and [REDACTED] classes were voluntary prayer sessions that did not include actual religious instruction. Tr.-2: 130-131. However, the law supports the reimbursement to individual parents for all aspects of the [REDACTED] School’s Program, secular and non-secular, which includes, but is not limited to, the [REDACTED] and [REDACTED] classes. I, therefore, find that there shall be no deduction from the final award for the [REDACTED] and/or [REDACTED] classes at the [REDACTED] School for the 2021 – 2022 School Year.

I note that the record shows that the Parent has not paid the [REDACTED] School tuition cost for the Student’s attendance from September 13, 2021 through the end of the 2021 - 2022 school year. Exs. P, R.

Based on the foregoing, I find that:

1. The District failed to provide or offer a FAPE for this Student for the 2021 - 2022 school year;

2. The Parent established that the [REDACTED] School was appropriate for this Student for the 2021 - 2022 school year, and that the Student made meaningful progress at the [REDACTED] School;

3. That equitable considerations support the Parent’s request for tuition reimbursement; and

4. There shall be no deduction from a final award for the sectarian components of the Student’s schedule at the [REDACTED] School for the 2021 – 2022 School Year.

ORDER

It is hereby ORDERED that the New York City Department of Education is directed to pay to The Special Torah Education Program School, in the amount of $69,000.00, which represents the full cost for one-year tuition and fees for Student for the 2021 – 2022 school year, within thirty (30) days of the date of this order and without having to submit any further documentation proving attendance or the total amount that is due and payable.

SO-ORDERED.

DATED: March 16, 2023 s/s Kenneth B. Lynch

KENNETH B. LYNCH

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION EXHIBITS

1. IEP, 06/28/2021, 25 pp.

2. PWN, 06/28/2021, 4 pp. DOE

3. School Location Letter, 06/28/2021, 3 pp. DOE

PARENT EXHIBITS

A. Impartial Hearing Request, 09/14/2022, 4 pp.

B. Letter to CSE Chairperson(w. email confirmation), 07/30/2021, 4 pp..

C. TDN (w. email confirmation), 08/18/2021, 4 pp.

D. Counseling Progress Report, 05/2022, 2 pp..

E. Occupational Therapy Progress Report, 05/2022, 4 pp.

F. Physical Therapy Progress Report, 05/2022, 2 pp.

G. Reading/Language Arts Progress Reports, 2021-2022, 2 pp.

H. Speech-Language Therapy Progress Reports, 05/2022, 4 pp.

I. Teacher Progress Report, 05/2022, 2 pp.

J. Behavior Modification Plan, 2021-2022, 1 p.

K. Classroom Routines, 2021-2022, 2 pp.

L. Communication and Socialization Goals, 2021-2022, 1p.

M. Vocational/Life Goals and Related Measurable Skills, 2021-2022, 2 pp.

N. Math Goals, 2021-2022, 2 pp.

O. Daily Schedule, 2021-2022,1p.

P. Enrollment Contract, 08/31/2021, 2 pp.

Q. Attendance, 2021-2022, 1 p.

R. Affidavit of Payment, 07/07/2022, 1p. S. US Individual Tax Return, 2020, 2pp.

T. Affidavit of Testimony of [REDACTED], 01/31/2023, 3pp.

U. Affidavit of Testimony of [REDACTED], 01/27/2023, 6pp.

IHO EXHIBITS

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.