New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 587764 - NYC: 239006

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED], (“Student”)

Date of Birth: [REDACTED]

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: [REDACTED], Advocate, on behalf of [REDACTED] (the “Parents”) and the Student

Record Close Date: June 28, 2023

Hearing Officer: Randy Glasser, Esq.

On September 21, 2022, [REDACTED], Advocate, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding her special education program and services for the 2022/2023 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on October 25, 2022. A hearing was supposed to be held on February 6, 2023 but none of the parties attended, while a prehearing conference was held on February 8, 2023, a status conference on March 8, 2023 and April 3, 2023 and hearing on April 24, 2023 and May 2, 2023.

The District did not put on a direct case or submit documents into evidence. The Parents put on a direct case and submitted Parent Exhibits “A” through “L” into evidence, which were comprised in part of one (1) affidavit for [REDACTED], Special Education Coordinator at [REDACTED] (the “School”) (“Special Education Coordinator”) (see Parent Ex. “G”). Pursuant to this IHO’s direction, the parties submitted written closing statements^[1] (see: IHO Ex. “I” and “IX”). The compliance date for this matter has been extended to July 3, 2023 (IHO Ex. “X”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is [REDACTED] ([REDACTED]) years old and classified as a student with a Learning Disability (Parent Ex. “J”). On the Wechsler Abbreviated Scale of Intelligence – Second Edition (WASI-II) she earned a full-scale IQ score of 105 (Average), an 88 on overall reading which fell within the low average range and a 90 for overall math which fell within the average range (Id.). The Special Education Coordinator testified in relevant part:

14. During the 2022-2023 academic year, [the Student], a tenth grade student, presents with a variety of challenges and delays that impact her educational progress. She presents with substantial academic delays, especially in her math, reading comprehension, writing speed, spelling, punctuation, pre-writing skills, oral comprehension, and vocabulary. She gets frustrated when she struggles during class, and becomes disruptive. She struggles with expressive, receptive, and social pragmatic language skills, including difficulty with word retrieval and retelling details of a story, as well as with expression, as her vocabulary is very limited. She struggles to construct a paragraph to describe an event or an episode from the material she just read. She was not able to solve math problems. She presents with difficulty solving math problems.

She also struggles with functional tasks, including study skills, organizational skills, and executive functioning skills, including pre-writing skills. She struggles with attention and sitting in class. She presents with the inability to successfully take in information, process it, manipulate it, and produce new information.

(Parent Ex. “I”).

The Student’s Individualized Education Program (“IEP”) dated January 4, 2022, recommends the following ten (10) month special education program and services: Integrated CoTeaching (“ICT”) class for English Language Arts eight (8) times per week, one (1) period per session, Math eight (8) times per week, one (1) period per session, Social Studies four (4) times per week, one (1) period per session, and Science four (4) times per week, one (1) period per session, and individual counseling one (1) time per week, thirty (30) minutes per session (Id.).

The Parents unilaterally placed the Student at the School for the 2022/2023 school year, for which they are now seeking the District’s direct funding for the Student’s tuition and related services^[2] (Parent Ex. “A”; Tr. at p. 38).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: 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 comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). 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 (c) reasonably calculated to enable the student to receive educational benefits. Board 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, 137 S. Ct. 988 (2017).

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 the 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)).

The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or local educational agency (“LEA”) has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The Parents presented two (2) witnesses on their direct case, the Parent, and the Special Education Coordinator. The Parent testified in relevant part regarding the Special Education Teacher Support Services (“SETSS”) the Student received before High School (Tr. 43), how she changed the Student’s placement to the School during the 2021/2022 school year, and is happy with her progress (Tr. 43-44), the IEP Team meeting held on January 4, 2022, which is the last IEP [or IESP] the District has developed for the Student (Tr. 44-45), how she received the placement letter for [REDACTED] High School in March of 22, and that she does not think such placement is appropriate because the classroom is more than double in size and not as individualized as her current placement at the School (Tr. 45-46), in July 2022 she received another placement letter for [REDACTED] High School for the 2022/2023 school year and why such placement is not appropriate for the Student (Tr. 46), the Student did incredibly well in the class compared to her history and she seems to understand what is going on in the class (Tr. 46, 47), the contract she signed with the School for the 2022/2023 school year make her responsible for the payment of tuition (Tr. 47-48, 50), she cannot afford paying the Student’s tuition of $110,000.00 at the School, without taking out a loan (tr. 50), the family receives Medicaid assistance and they “just get by” (Tr. 51), the family’s combined income for 2022 was $60,000 (Tr. 53), and her husband does not work or bring any money into the family (Tr. 53-54).

On cross-examination the Parent testified in relevant part regarding the IEP Team meeting held on January 4, 2023 (Tr. 89), evaluations conducted for the meeting (Tr. 91), whether she was given the opportunity to speak (Tr. 94, 98), she was not happy with the meeting (Tr. 99), what was discussed at the meeting (99-100), who attended (Tr. 102), the Parent did not express dissatisfaction with the meeting when it was over (102-103), when she received notice of the Student’s placement in the ICT class (Tr. 103), issues the Parent had between the meeting and when she learned of the placement (Tr. 107-108), and that she placed the Student at the School in November 2021 (Tr. 108).

In addition to the testimony contained in the Special Education Coordinator’s Affidavit at Parent Ex. “I”, she testified in relevant part regarding her certifications, and employment history (Tr. 59-60, 62-63), the fact that she worked one year for the New York City Board of Education as a teacher in an ICT class , and another in a 12:1+1 special education class, and then in a Yeshiva classroom (Tr. 60-61), paragraph 13 and that she observes the Student in the classroom at least one (1) time per month, for one (1) period (Tr. 63-64), the basis for her statements in paragraph 14 (Tr. 64-65), paragraph 16, including the specialized classes the Student attends (Tr. 65-66), the basis of her statements in paragraphs 22, 23, 24 (Tr. 66-67, 68), the writing skills reported in paragraph 26 versus as of that hearing date (Tr. 69-70), the Student’s math skills at the beginning of the school year versus as of the date of the hearing (Tr. 69-70), how the School addresses the Student’s math deficits (Tr. 69-70), paragraph 28 (Tr. 71), and the Student’s teachers and their certifications (Tr. 71-73).

On cross-examination the Special Education Coordinator testified, explaining paragraph 5, the number of students in a class at the School (Tr. 114-115), paragraph 4 and her role at the School (Tr. 115-116), paragraph 12 and her experience with the Student (Tr. 116-117), paragraph 22 and her involvement in assessing the Students (Tr. 117-118), Parent Ex. “G”, the teacher progress resort and her involvement with preparing the report (Tr. 121, 122), how the School assesses students’ progress in the curriculum (Tr. 122-123), how it was determined that the Student is at a seventh grade reading level (Tr. 123-124), how the student is doing in writing and math (Tr. 125-127), the School uses the New York State standards to determine the curriculum for the Students (Tr. 128), how much of the curriculum is religious in nature (Tr. 128-129, 133-134), half of the students in the Student’s class are classified (Tr. 130).

The District did not present any rebuttal witnesses.

B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and

(3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

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). The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x

11 (2d Cir. 2009). To determine whether the school district made a FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative 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 to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

The District argues in its closing statement that the public-school program offered to the Student would have provided her with a FAPE in that “it was tailored to meet her educational needs” (IHO Ex. “I” at p. 2). More specifically the DOE argues that it provided the Student with a FAPE because the IEP Team was duly constituted and had sufficient evaluative material from which to make an appropriate recommendation, the goals and objectives on the IEP are appropriate and measurable, and the recommended program was appropriate to meet the Student’s special education needs, the District provided a FAPE (Id. at pp. 5-7).

While the Parents allege in their DPC and argue in their Closing Statement that the District failed to provide a FAPE to the Student because instead of the District convening an IEP [Team] for the 2022-2023 school year, the District used the IEP dated January 4, 2022 for the entire school year, and despite the Parents’ rejection of the ICT class, because it was allegedly not appropriate, the District sent the Parents a School Location letter on July 21, 2022 recommending the very same placement at [REDACTED] High school that the Parents had rejected (Parent Ex. “A” at p. 3; IHO Ex. IX at p. 4 ).

It is undisputed that the Student at all times relevant to this dispute was a resident of the District (Parent Ex “A”). In this regard, Education Law § 3202(1) provides that "[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition." A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). Moreover, even if a student is not officially enrolled in the district, courts have recognized that a district's duty to offer the student a FAPE is triggered by the student's residency in the district, not the student's enrollment status or the parent's intent (see E.T. v. Bd. of Educ., 2012 WL 5936537, (S.D.N.Y. 2012) (noting that "residency, rather than enrollment, triggers a district's FAPE obligations" and "the issue of parental intent vis-à[-]vis the child's enrollment is not dispositive of whether a school district has a FAPE obligation to a disabled child") (internal quotations omitted)). Thus, a district of residence has an obligation to provide a FAPE to a resident student with a disability that does not end with the enrollment of the student in a nonpublic school (see Doe v. East Lyme Bd. of Educ.,790 F.3d 440, 450-51 (2d Cir. 2015); E.T., 2012 WL 5936537; see also N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1209 (9th Cir. 2008) ("A school district cannot abdicate its affirmative duties under the IDEA")).

Pursuant to 8 NYCRR §200.4(f):

The individualized education program (IEP) of each student with a disability shall be reviewed and, if appropriate, revised, periodically but not less than annually to determine if the annual goals for the student are being achieved. Any meeting to develop, review or revise the IEP of each student with a disability to be conducted by the committee on special education or subcommittee thereof, pursuant to section 4402(1)(b)(2) of the Education Law, shall be based upon review of a student's IEP and other current information pertaining to the student's performance. Thus, each IEP shall contain, the “projected date of annual review” (Id.). The New York State Education Department’s Guide to Quality Individualized Education Program (IEP) Development and Implementation (https://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf) (last accessed 6/25/23), states regarding the “projected date of annual review”: The IEP must indicate the projected date of the review of the student’s IEP. Each student’s IEP must be reviewed and, if appropriate, revised at least annually to determine if the annual goals for the student are being achieved. Some students require more frequent reviews to adjust the student’s educational program as a result of a student’s changing needs. (Id. at p. 17).

In this regard, the IEP dated January 4, 2022, has a projected annual review date of January 4, 2023, meaning that the District was required to conduct the requisite annual review by that date. However, there has been no evidence presented in this case that the District developed a subsequent IEP for the Student for the remaining months of the 2022/2023 school year, e.g., from January 4, 2023 to June 30, 2023 (Parent Ex. “J”). Thus, the question is whether or not the District violated its obligation to provide the Student with a FAPE because of this procedural violation. By not meeting on or before January 4, 2023 (the annual review date on the IEP), the District (a) arguably impeded the Student’s right to a FAPE because pursuant to Commissioner’s Regulation 200.4, it failed to review the Student’s IEP, to see if it needed to be revised based upon the Student’s functioning levels/needs, and determine if the annual goals for the Student were then being achieved, (b) significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE for the Student, because a CSE was not held at which such decision-making process would have been engaged in, and (c) at the very least potentially caused a deprivation of educational benefits to the Student because the program and services offered to the Student pursuant to the expired IEP were potentially no longer based upon the Student’s then current functioning levels, needs, etc. Thus, the District’s procedural violation resulted in its failure to provide a FAPE to the Student for six (6) out of the ten (10) months comprising the 2022/2023 school year, pursuant to §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In terms of the special education program offered to the Student from September 1, 2022 to January 4, 2023, the Parent alleges that the placement is not appropriate, but then nothing about the creation of or contents of the resulting IEP, e.g., IEP Team composition, functioning levels, goals, counseling services, etc. Regarding the Student’s recommended placement, both the Parent and CSE Coordinator opined that even though the District offered an ICT class, like the ICT class in which the Student was enrolled at the School, the former was not appropriate because of the number of students in the class (34/35 in the District’s class versus 20/21 in the School’s ICT class) (see: Infra). However, the Parents failed to present any expert testimony, evaluation, etc. substantiating this claim.

The District, on other hand proved how the January 4, 2022 IEP was appropriate and therefore provided the Student with a FAPE, in that it was reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. This IEP accurately reflected the results of the evaluations identifying the Student’s needs, established annual goals related to those needs, and provided for an appropriate program and special education services^[3] (see: Infra). Based upon the evidence introduced at the hearing the District demonstrated how the annual goals were consistent with, and related to, the identified needs and abilities of the Student. (see: Infra).

Since the District has failed to satisfy the first prong of the Burlington/Carter criteria, for six (6) out of the ten (10) months of the 2022/2023 school year, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper for that time period. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents 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)). In this regard, the court in Gagliardo explained:

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. Id. at 112 (quoting, Frank G., 459 F.3d at 364-65). However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, 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. Id.

In the instant case, the testimony and documentary evidence support the Parents’ claim that the Student’s placement at the School provides her with educational instruction that is specifically designed to meet her unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the Special Education Coordinator testified regarding her familiarity with the Student and her challenges and delays at the beginning of the 2022/2023 School Year (Parent Ex. “G” at ¶¶13-14), how these needs were addressed by the School (Id. at ¶15), the classes she attended and how they were chosen based upon her educational needs and the support she required in each class (Id. at ¶¶16-19), the supports and accommodations she received in her general education classes (Id. at ¶20), the Student’s reading skills at the beginning of the school year, how they were addressed during the school year, and improvement in her reading skills by the end of the school year (Id. at ¶¶22-23), the Student’s writing skills at the beginning of the 2022/2023 school year, how they were addressed during the school year and her math skills at the end of the school year (Id. at ¶¶24-26) (see also: Teacher Progress Report regarding how the School addresses the Student’s areas of weaking in math and reading at Parent Ex. “G”). In addition, as aforementioned the Special Education Coordinator testified as to the Student’s math skills at the beginning of the 2022/2023 school year, how they were addressed and what if any progress she made by the end of the school year (see: Infra). The Parent also testified that she was happy about the progress the Student had made in the School during the 2022/2023 school year, and that she did incredibly well in the class compared to her history e.g., she seems to understand what is going on in class (Tr. 44, 46 47).

The final criterion or third prong for a reimbursement award is that the Parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 185, 194 (2d Cir. 2012); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 at 16 (1993) ("Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable")).

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412(a)(10)(C)(iii); 34 CFR 300.148(d); see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. App'x 62, 2006 WL 2335140 (2d Cir. 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005); see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 (N.D.N.Y. 2001)). Thus, reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412(a)(10)(C)(ii)(I); see: 34 CFR 300.148(d)(1)). Parents of students enrolled in private school are not exempted from the 10-day notice requirement. S.W. v New York City Dep't. of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE]

can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir.

2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

The Court in R.G. v. New York City Board of Ed., 585 F. Supp.3d 524, 536 (S.D.N.Y. 2022), further explained: That list is non-exhaustive. Forest Grove, 129 S. Ct. at 2493; E.M. v. New York City Department of Education, 758 F.3d 442 (2d Cir.

2014) (characterizing the statutory factors as "elucidative rather than exhaustive" and stating that "[i]n [*536] making that equitable determination, the district court may consider many factors"). The court has "broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable." J.S., 826 F. Supp.2d at 671 (citing Carter, 510 U.S. at 16, 114 S. Ct. 361). "Among the most important of these is 'whether the parents have cooperated with the District throughout the process to ensure their child received a FAPE.'" Id. (cleaned [**21] up) (quoting Bettinger v. New York City Board of Education, No. 06CV-6889, 2007 U.S. Dist. LEXIS 86116, 2007 WL 4208560, at *6 (S.D.N.Y. Nov.20, 2007). In considering the equities, "courts should generally presume that public-school officials are properly performing their obligations under IDEA." Forest Grove, 57 U.S. at 247, 129 S. Ct. at 2496. And to obtain reimbursement in whole or in part, parents bear the burden of establishing that equitable considerations favor them. R.E., 694 F.3d at 185.

In the instant case, the Parents provided the requisite notice, and there is no evidence that the Parent failed to cooperate with the CSE (see: Infra). Accordingly, there is no reason to reduce the above-mentioned award of 60% of the Student’s tuition at the School for the 2022/2023 school year or sixty percent (60%) x ONE HUNDRED AND TEN THOUSAND DOLLARS ($100,000.00) = SIXTY-SIX THOUSAND DOLLARS ($66,000.00). .

In the Parents’ opening statement, Ms. REDACTED stated in relevant part, that the Parents are seeking that this IHO fund the Student’s placement at the School minus the religious studies portion of her schedule (Tr. 38). However, the Parents offered very little evidence or testimony in this regard. Specifically, the Parents provided the Student’s schedule and the Special Education Coordinator testified that not a lot of the School’s curriculum is religious in nature (Tr. 128-129; Parent Ex. “F”). Pursuant to the Student’s schedule she attends “Mincha”, four (4) times per week, ten (10) minutes per session for a total of forty (40) minutes, which is defined by Wikipedia as, “Mincha (Hebrew: ‫מִ נחַ ה‬, pronounced as IPA: [minˈχa]; sometimes spelled Minchah or Minḥa) is the afternoon prayer service in Judaism.” https://www.google.com/search?q=mincha&oq=mincha&aqs=chrome..69i57j0i512l3j0i20i263i5 12j46i512j0i512l2j46i512j0i512.4886j0j9&sourceid=chrome&ie=UTF-8 (last accessed 6/12/2023). She also attends Jewish Studies five (5) times per week, forty (40) minutes per session for a total of two hundred (200) minutes per week. Thus, it appears that the Student attends nonsecular classes a total of two hundred and forty (240) minutes per week (40+200) out of the two thousand three hundred and forty (2,340) minutes per week (9 hours 4 days per week x 60 minutes (2,160) plus 3 hours (x 60) (180)). 240/2340 = 10.26541%. 10.26541% of $66,000.00 = $6,769.00. $66,000.00 - $6.769.00 = $59.231.00, the amount of tuition the District is obligated pay of the Student’s tuition at the School for the 2022/2023 school year.

Having met all three (3) of the Burlington/Carter Criteria for six (6) months out of the ten (10) month school year, the Parents are entitled to reimbursement for FIFTY NINE THOUSAND TWO HUNDRED AND THIRTY-ONE DOLLARS ($59,231.00) of the Student’s total tuition for the 2021/2022 school year, of which the Parents have paid TEN THOUSAND DOLLARS ($10,000.00), leaving a balance of FORTY NINE THOUSAND TWO HUNDRED AND THIRTY ONE DOLLARS ($49,231.00) (see: Parent Ex. “D” and “C”).

The remaining issue is whether this IHO can order direct payment to the School of the Student’s tuition for the 2022/2023 school year. As more fully explained below, the Parents have sustained this burden.

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014); see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) (finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources)).

The Parents’ Contract with the School provides in relevant part:

However, in the event that the Parent(s) does not qualify for prospective payment of tuition or Parent’s claim for tuition is denied by an impartial hearing officer, Parent(s) shall remain responsible for the full payment of tuition in accordance with the terms established below. (Parent Ex. “B”) (Emphasis added). Like in the E.M. case, the Parents are legally obligated to pay the School for the Student’s tuition for the 2022/2023school year in the event that ultimately the School is not paid (Id.). Thus, the Parents incurred a financial obligation for the Student’s tuition, which supports an award of reimbursement relief. Moreover, the Parents have provided testimony and evidence demonstrating that they do not have the financial resources to pay for such services. In this regard, the Parent testified/explained why they are unable to pay the Student’s tuition at the School (see: Infra). Accordingly, the Parents are entitled to this IHO ordering direct payment to the School for the Student’s tuition for the 2022/2023 school year.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their payment of a portion of the Student’s tuition at the School for the 2022/2023 school year totaling TEN THOUSAND DOLLARS ($10,000.00) upon the Parents presenting to the District their credit card statements, and/or documents, evidencing their payment to the School; and IT IS FURTHER ORDERED that no later than thirty (30) days after the date of this decision, the District shall directly pay to the School FORTY-NINE THOUSAND TWO HUNDRED AND THIRTY-ONE DOLLARS of the Student’s tuition for the 2022/2023 school year.

June 28, 2023

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

FOR HEARING HELD ON FEBRUARY 6, 2023

DOE

None

PARENTS

None

FOR HEARING HELD ON APRIL 24, 2023

DOE

[REDACTED], Esq., District Representative

PARENTS

[REDACTED], Advocate Parent Coordinator of Special Education

FOR HEARING HELD ON MAY 2, 2023

DOE

[REDACTED], Esq., District Representative

PARENTS

[REDACTED],, Advocate Parent Coordinator of Special Education

DOCUMENTS ENTERED INTO THE RECORD

IHO EXHIBITS

I. DOE’s Closing Statement. 5/31/2023 11 pages IHO

II. Email, 6/1/2023, 1 page IHO

III. Email, 6/1/2023, 1 page IHO

IV. Email, 6/1/2023, 1 page IHO

V. Email, 6/1/2023, 1 page IHO

VI. Email, 6/1/2023, 1 page IHO

VII. Email, 6/1/2023, 1 page IHO

VIII. Interim Order, 6/23/2023 4 pages IHO

IX. Parents’ Closing Statement, 6/1/2023 6 pages IHO

X. Order of Extension, 5/19/2023 1 page IHO

DOE EXHIBITS

None

PARENT EXHIBITS

A. Due Process Complaint, 9/21/2022, 4 pages

B. Notice Letter, 8/23/2022, 1 page

C. School Enrollment Contract, 8/16/2022, 7 pages

D. School Tuition Affidavit, 4/11/2023, 1 page

E. School Program Description, Undated, 3 pages

F. School 10th Grade Schedule, 2022/2023, 1 page

G. School Teacher Progress Report, 4/17/2023, 4 pages

H. School Counseling Progress Report, 3/15/2023, 1 page

I. Affidavit, 4/21/2023, 5 pages

J. IEP, 1/4/2022, 20 pages

K. Prior Written Notice of Recommendation, 7/21/2022, 4 pages

L. School Location Letter, 7/21/2022, 2 pages

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Pursuant to this IHO’s Order dated June 23, 2023, both Closing Statements were accepted by this IHO (see Interim Order at IHO Ex. “VIII”).

[2] Since there was no evidence submitted regarding the cost of related services, separate and apart from the Student’s tuition for the 2022/2023 school year at the School, this IHO shall only address whether or not the Parents are entitled to such tuition reimbursement.

[3] See Point “2” on page 5 - 6 and Point “3” on page 6-7 of the District’s Closing brief at pp. 5-6 at IHO Ex. “I”.