New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

DOE DEFAULT & INQUEST

Case Number: 246822

NYS Identifier Number N/A Student’s [REDACTED]: [REDACTED]Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 06/28/23

Actual Record Close Date: 07/21/23

Hearing Officer: Edgar De Leon

[REDACTED]S AND TITLES OF PERSONS WHO APPEARED

[REDACTED] Title For Date [REDACTED] Attorney DOE 06/28/23 (V)

[REDACTED] Attorney PARENT 06/28/23 (V) [REDACTED] Mother PARENT 06/28/23 (V) [REDACTED] Dir. of Special Education PARENT 06/28/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

A. Request for Impartial Hearing 3/20/2023 4 pages

B. Ten Day Notice 8/19/2022 4 pages

C. Tax Return 2021 2 pages

D. Enrollment Contract 8/17/2022 4 pages

E. Payment Affidavit 12/12/2022 1 page

F. Classroom Schedule 2022-2023 1 page

G. Program Description 2022-2023 32 pages

H. SL Progress Report 11/15/2022 2 pages

I. OT Progress Report 11/15/2022 3 pages

J. Counseling Progress Report 11/17/2022 1 page

K. Teacher Report 11/20/2022 4 pages

L. PT Progress Report 11/24/2022 2 pages

M. Attendance Record 2022-2023 1 page

N. Affidavit of [REDACTED] 6/20/2023 6 pages

N/A N/A N/A IHO N/A

On March 21, 2023, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of an (18) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: [REDACTED], regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 28, 2023. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent through her attorney(s), [REDACTED] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about March 20, 2023. The DPC is carried under New York City (“NYC”) Case No. 246822. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief: (a) Prospective funding for the student’s placement at the private school for the 2022-2023 school year and transportation to and from this placement.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-5-10 & 15) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-E & P-N) The DOE cross examined only (1) of the Parent’s affiants. (T-21-44) The Parent also submitted (14) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-10) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - STANDARD OF REVIEW

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537) The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student with a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

DOES’ DEFAULT

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer and did not serve a “Prior Written Notice” (“PWN”) in this case. (See 20 U.S.C. 1415(f)(3)(e), T-5-10 & 15 ) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case and did not serve the Parent with “Prior Written Notice,” which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain

v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not object or controvert the testamentary or documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by either party and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary evidence submitted by both sides and the testamentary and documentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following.

3. I am currently employed as the Director of Special Education at the [[REDACTED]] School. I have held this position since 2008. Prior to working at [PRIVATE SCHOOL [REDACTED], I worked as a curriculum director for a general education school and prior to that I had ten years of teaching experience in a general ed classroom.

5. [PRIVATE SCHOOL [REDACTED]] is an independent, all-girls school setting. During the 2022-2023 school year, there were two distinct special education programs that were integrated, at different levels, into the larger general education school. The first program is called [[REDACTED]] which is designed for students with developmental delays and intellectual disabilities. The second program is called the Learning Center and is primarily for students with learning disabilities.

6. Overall, during the 2022-2023 school year there were 343 students attending [PRIVATE SCHOOL [REDACTED]]. There were 31 in [PROGRAM [REDACTED]], and 33 in the Learning Center.

7. All teachers in our special education faculty have extensive training in Orton Gillingham. Orton Gillingham is a structured, sequential, systematic approach to reading, which involves multisensory techniques.

9. For the 2022-2023 school year, [STUDENT [REDACTED]] was in the [PROGRAM [REDACTED]] program as a 9th grader. There were 9 students in her class with one teacher, one assistant, and at some points in the day additional instructors. The times of the day when there are additional instructors are during times designated to individualized instruction in subject areas related to literacy and math. The lead teacher was [[REDACTED]], who has over ten years of experience working with special needs students and is a New York state licensed teacher of students with disabilities.

10. The students in [STUDENT [REDACTED]]’s class all had intellectual disabilities, similar to [STUDENT [REDACTED]].

11. For our reading curriculum, we use a combination of the whole-language approach, where in addition to our Orton Gillingham phonics instruction, we use the Reading Workshop model; the teacher gives a mini-lesson and then the students are divided up into smaller groups, based on their level. We determine their levels based on the Fountas & Pinnell Guided Reading Assessment, and the students do guided reading at their individual levels. In guided reading sessions, teachers also foster generalization of phonics skills that were introduced to the students in their Orton-Gillingham sessions. Elements from the Seeing Stars program are used as well to build symbol imagery which aids in the accuracy and automaticity of reading and spelling.

12. In terms of actual lessons, we have created a program called “Comprehension Close-Ups”, which uses the Reading Workshop model and is based on different units of comprehension skills. For students with intellectual deficits, the read aloud that are chosen to be explored focus on ADL skills, and broadening schema. The skills addressed relate to retelling and basic comprehension of written text. This is something that's followed in the guided reading lessons as well. We also focus on encoding and decoding, with an emphasis on Orton-Gillingham instruction.

16. [STUDENT [REDACTED]] is diagnosed with Down Syndrome and as such, her cognitive development is significantly delayed.

17. [STUDENT [REDACTED]] presents with learning challenges in all academic areas due to her significant intellectual deficits.

23. To address [STUDENT [REDACTED]]’s learning challenges, learning was presented in small groups and lessons were created that break down tasks into small manageable steps. All lessons were presented using multiple modalities, concrete learning materials and used sensory input to allow [STUDENT [REDACTED]] to acquire abstract concepts. Repetitive tasks and language were used as this was seen to be beneficial to [STUDENT [REDACTED]]’s learning. Moreover, lessons included visual supports as this was seen to be helpful to her learning. Overall, as [STUDENT [REDACTED]]’s social development was supported, academic progress was seen. Routine, structure, expectation and consistent behavior plans were successful in allowing her to learn best. Moreover, as she saw success in learning, she showed more motivation to perfect. ADL skills and functional learning were taught in isolation and also incorporated as components of academic lessons. For example, during class read alouds, books were chosen that related to real world concepts and subsequently built schema. Another instance of this is when working on math skills, functional areas such as time and money were emphasized.

26. [STUDENT [REDACTED]] received 1:1 daily instruction for guided reading and was in a group of two for phonics. This grouping was determined based on [STUDENT [REDACTED]]’s reading level, and other student in her group and similar learning needs and skills. [STUDENT [REDACTED]] has made progress in her reading. In September 2022, as per the Fountas and Pinnel Guided Reading Assessment, [STUDENT [REDACTED]] was reading level K trade books at a rate of approximately 60 words per minute. She is currently reading level L books approximately

75 words per minute with 96% accuracy. She also improved greatly in her phonics skills, as can be seen in an improvement in spelling, [REDACTED]ly her ability to read and spell multisyllabic words.

27. [STUDENT [REDACTED]] has made great progress in her social emotional skills. Throughout the year she learned concepts related to emotional regulation and communication. This is evident in her academic progress as her regulation and her behavior as improved which allowed her to engage effectively in learning sessions and thus show academic progress. Her social interaction has also improved greatly and she is now seen interacting with her peers with little support.

28. [STUDENT [REDACTED]] learned 1:1 for math as it supported both her learning needs and skill level. In addition, ongoing informal assessment ensured that [STUDENT [REDACTED]] was making progress and the appropriate goals were being addressed in math instruction throughout the year.

30. [STUDENT [REDACTED]] needs - and has benefitted from - being in a specialized program that is dedicated to students with similar needs. The language curriculum is programmatic and infused throughout the program at Gan [PRIVATE SCHOOL [REDACTED]]. [STUDENT [REDACTED]] needs a language-based program to make meaningful progress.

31. [STUDENT [REDACTED]] is placed with appropriate peers at the [PRIVATE SCHOOL [REDACTED]]. She is placed among other students with developmental delays, many of whom also were diagnosed with Down Syndrome. Also, the students in her specific reading and math groups have similar learning profiles and needs; rendering the peer group appropriate for [STUDENT [REDACTED]].

32. [STUDENT [REDACTED]] also participated with her mainstream peers for extra-curricular activities, and school community projects.

33. [STUDENT [REDACTED]] clearly benefits from these supported mainstream opportunities. We saw growth in her social emotional skills, and peer relations.

34. Please refer to Parent's Exhibits for a complete and accurate representation of [STUDENT [REDACTED] NOT RELATED TO THIS CASE]'s needs at that time, the skills being addressed by our program and her progress. These include reports by related service providers for counseling, Speech and Language Therapy, Occupational Therapy, which were all provided by providers licensed in their respective disciplines. (PN)

On cross examination, the witness testified at the private school it is an individual choice that each student takes upon themselves to pray. (T-25) The student is with the same group of students for the academic portion of the school day, but there may be mainstream opportunities during different parts of the week. (T-26) During the 9 to 9:20 “NeuroNet” period, is the student grouped with other students. (T-27) The “NeuroNet” class is held with other classes. (T-28) The witness then explained the “NeuroNet” class as follows:

So NeuroNet done by group of level, and we have three NeuroNet groups that take place simultaneously within two classes. So we have a class of seven and a class 9, that group is combined and then divided based on level. So we have NeuroNet taking place in three groups for these two classes. (T-28-9)

The witness then identified the classes on the student schedule (P-F), as either academic or not as follows: I'm saying, basically you're talking about from 10 o'clock until 11:15 is structured academics. Then we have 11:15 to 11:25, which is not structured academics, it's their nutrition and socialization. 11:25 to 12:30 is, again, structured academics. 12:30 to 1 o'clock is lunch, which the students have within the mainstream lunchroom. 1 o'clock until 2:30 is structured academics. 2:30 to 2:45 is structured socialization and -- and activities. 2:45 to 2:55 is the nutrition and socialization, which is not -- not academic in nature. 2:55 until 3:50 is, again, academic portion of the day. (T-31-2)

The witness testified that instruction in learning how to cook does not include any instructions involving the rules of keeping kosher. (T-32) The Parent’s attorney proffered that ten percent in total is what the Parent is putting forth as the percentage of the religious instruction of the day. (T-33) The witness then testified that there are no religious texts utilized during any of the student's reading or writing courses. (T-37) There was no redirect examination of the witness. (T-44)

DECISION & ORDER

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The Endrew F standard requiring more than a diminimis IEP, concerns the school district, not the parents’ obligation. The record supports a finding that the private school meets the ”reasonable” standard for a finding that it was an appropriate placement for the student’s 2022-2023 school year.

The NYC-DOE’s entire focus on cross examination was aimed at establishing what percentage of the student’s attendance at the private school constitutes religious instruction.

The three-part standard which the United States Supreme Court articulated in its landmark decision in Lemon v. Kurtzman, 403 U.S. 602 (1971) holds that government action in this regard must have a secular purpose, that it must not have the primary effect of advancing religion, and that it must not create excessive entanglement between church and state. The IDEA (20 USC 1400 et seq.) has a secular purpose. The reimbursement of parents for the cost of their children's education, which should have been borne by the NYC-DOE in the first instance, does not have the primary effect of advancing religion, nor does it involve an entanglement of church and state.

In Zobrest v. Catalina Foothills School District, ___ U.S. ___, 113 S. Ct. 2462, at 2469 (1993), the Supreme Court found that IDEA "...creates a neutral government program dispensing aid not to schools but individual handicapped children." In Zobrest, the Supreme Court noted that it had previously held that government programs which neutrally provide benefits to a broad class of citizens irrespective of their religion are not readily subject to an Establishment Clause challenge simply because sectarian institutions may also receive an attenuated financial benefit. (See Mueller v. Allen, 463 U.S. 388 [1983] and Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 [1986]).

Mueller v. Allen involved a state income tax deduction for parents of all children for certain educational expenditures, including tuition at private schools, many of which were sectarian. Witters v. Washington Dept. of Services for the Blind involved a publicly funded vocational rehabilitation program which provided special education and/or training in the professions, business, and trades for visually impaired individuals, one of whom wished to use program funds to obtain a degree in theology. In both cases, the argument was made that the governmental program, no matter how religiously neutral on its face, would nevertheless have the primary effect of advancing religion.

In Mueller, the Court noted that the only aid which went to sectarian schools was the result of the decisions of individual parents to enroll their children in those schools, and that there was no "imprimatur of state approval" (see Widmar v. Vincent, 454 U.S.

263 [1981]) given to those schools as a result the Parents' decisions to place their children in them. The Court found that the primary effect of the state income tax deduction was not to advance religion, and that it did not excessively entangle the state in religion. In Witters, the Court also found that any aid which ultimately flowed to religious institutions did so as a result of the independent and private choices of the aid recipients, and that the aid in no way created a financial incentive for students to undertake sectarian education.

In addition, a federal district court in New Jersey has specifically held that funding under the IDEA for sectarian school tuition is not in violation of the Establishment Clause. ( See L.M. v. Evesham Township Bd. of Educ., 256 F. Supp. 2d 290 (D.N.J. 2003), see also SRO No. 96-14 (analyzing the same issue) An order directing the district to directly fund the student’s tuition in this case would simply fulfill the student’s right to receive a free, appropriate public education by requiring the district to “belatedly pay expenses [for the student’s education] that it should have paid all along and would have borne in the first instance had it developed a proper IEP” and provided an appropriate public-school placement for him for the 2019-2020 school year. (See Burlington, 471 U.S. at 370-71)

Applying these principles to the facts of this case, I find that the reimbursement of respondents for their expenditures for the child's tuition at the private school is not precluded by the Establishment Clause of the First Amendment. The IDEA clearly has the secular purpose of ensuring that all children with disabilities are offered a free appropriate public education.

In its Burlington and Carter decisions, the Supreme Court provided the remedy of tuition reimbursement to the parents of children who were entitled to receive a free appropriate public education but did not receive that education. The remedy is available to all parents who otherwise meet the criteria set forth in those decisions, regardless of whether the expenses which they incur arise from placement of their children in other public schools or in private schools. Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children appropriate educational placements. I note that the NYC-DOE has not refuted the testimony or the Parent’s attorney proffer that the child’s “religious instruction” at the private school does not exceed 10%, which the NYCDOE requested be acknowledged in this case. (T-33 & 46)

I find that here is no danger of excessive entanglement of church and state in the payment of tuition reimbursement to the Parent in this case. Nevertheless, the Parent proffered that she was not seeking reimbursement for any portion of the student’s religious instruction at the private school. (T-13) Specifically, the Parent is not seeking ten percent of the student’s $80,000 tuition at the private school. (T-45-6)

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]) When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, the record is devoid of evidence establishing the student’s need for special transportation services. There is no indication in the hearing record as to the student's need for special transportation during the 2022-2023 school year or any indication that special transportation was requested. Additionally, there is no evidence in the hearing record as to how the student was transported to and from the private school each day during the 2022-2023 school year. Accordingly, the hearing record does not support a finding that the district denied the student a FAPE due to the lack of provision for special transportation.

However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the NYC-DOE has not done so already, it should consider transportation of the student to and from the private school in accordance with the above.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the NYC-DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition and related cost at the private school for the entirety of the student’s 2022-2023 school year thereat, minus (10%) of that tuition and related cost; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: July 31, 2023

New York, New York Edgar De Leon - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] 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. (Rev. 07/09/20)