NY IHO #247907: Impartial Hearing...

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CASE NUMBER: 599097 - NYC: 247907

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parents”)

Request Date/Date Complaint Filed: May 2, 2023

Date(s) of Hearing: November 28, 2023

Actual Record Closed Date: December 4, 2023

Date of Decision: December 13, 2023

Time Sensitive No

Hearing Officer: Robin Levin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 28, 2023

For the Student:

REDACTED (“Parents’ Attorney”)

REDACTED (“Associate Pending Admission, Office of Parents’ Attorney”)

REDACTED (“Parent 1”)

REDACTED (“Parent 2”)

REDACTED (“Program Director at the Private School”)

For the Department of Education:

REDACTED (“DOE Attorney”)

INTRODUCTION

This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.^[1] This case concerns the Student who is classified as a student with Autism.2

On May ^[2], 2023, the Parents, through the Parents’ Attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”).^[3] In the DPC, the Parents alleged that the DOE failed to develop a procedurally and substantively valid Individualized Education Program (“IEP”) for the Student and failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year.^[4] The Parents alleged that the DOE’s Committee on Special Education (“CSE”) convened in May of 2021 to develop an IEP for the Student and failed to: (1) conduct sufficient evaluations of the Student prior to the IEP meeting; (2) create an updated social history or conduct a classroom observation of the Student; (3) assess the Student’s social/emotional and behavioral needs including conducting an adequate Functional Behavior Assessment (“FBA”); (4) provide the Parents with the Student’s Behavior Intervention Plan (“BIP”); (5) include a qualified District representative as part of the IEP team; and (6) ensure that all participants including the Student’s Parents and teachers had access to all materials actually considered by the IEP team so that they could fully and meaningfully participate in the discussion and development of the Student’s IEP.^[5] The Parents also alleged that the DOE did not based the recommendations on the Student’s unique needs and instead, the recommended program was predetermined for the 2021-2022 school year.^[6] Therefore, the Parents unilaterally placed the Student in a private school (“Private School”) for the 2021-2022 school year.^[7]

By way of relief, the Parents seek an award of direct tuition funding for the Student’s attendance at the Private School for the 2021-2022 school year, including the cost of the Student’s paraprofessional and other related services.^[8] As discussed below, I find that the DOE denied the Student a FAPE for the 2021-2022 school year. I find that the Private School provided the Student specially designed instruction sufficient to meet the Student’s needs. I find that the equities support the Parents’ request for direct tuition funding in full.

PROCEDURAL HISTORY AND POSITIONS OF THE PARTIES

On May 3, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On June 22, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). The parties requested additional time for the DOE to determine if the matter was recommended for settlement. Status conferences were held on July 11, 2023, August 9, 2023, September 12, 2023, October 10, 2023, November 3, 2023, and ultimately, the case was scheduled for a hearing.^[9]

A virtual hearing was held on November 28, 2023. It was a closed hearing. The Parents were present and represented by the Parents’ Attorney. The DOE Attorney was also present. Both parties gave opening statements.^[10] The DOE Attorney declined to admit any documentary evidence into the hearing record or call any witnesses at the hearing.^[11] The Parents’ Attorney submitted 13 exhibits, all of which were admitted into the hearing record without objection.^[12] The Parents called two witnesses to testify, Parent 2 and the Program Director at the Private School.^[13] The DOE Attorney cross-examined the Program Director at the Private School.^[14] The DOE Attorney declined to cross-examine Parent 2.^[15] The Parents rested, and the parties gave closing statements.^[16] The record was closed on December 4, 2023 after receipt of the hearing transcript.

In the DOE’s closing statement, the DOE Attorney argued that if any award for tuition funding is granted, a deduction should be made for the portion of the Student’s schedule attributed to religious instruction.^[17] The DOE Attorney argued that Carson v Makin, 596 U.S.__, 142 S. Ct. 1987 (2022) is distinguishable from the instant matter and does not address the applicability to the IDEA.^[18] The Parents took the position that the DOE declined to offer any documentary evidence or witness testimony at the hearing to show that the DOE provided the Student a FAPE for the 2021-2022 school year, functionally conceding Prong 1 of the Burlington/Carter standard.^[19] In addition, the Parents’ Attorney argued that the hearing record demonstrates that the unilateral placement at the Private School was appropriate for the Student for the 2021-2022 school year because the Private School provided a high level of individualized and tailored instruction to the Student with a paraprofessional and other appropriate related services.^[20] The Parents’ Attorney also argued that the Parents fully cooperated with the DOE throughout the IEP process.^[21] Lastly, the Parents’ Attorney argued that even though the Private School provided the Student with religious instruction, full tuition funding is not precluded under the law.^[22]

LEGAL FRAMEWORK

This case concerns the Parents’ request that the DOE directly fund the cost of the Student’s tuition including the Student’s paraprofessional and other related services for the 2021-2022 school year.^[23] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.^[24] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”^[25] A school district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.^[26]

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[27] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[28] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.^[29] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.^[30]

Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”^[31] 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.”^[32] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[33]

Moreover, a school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.^[34] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[35] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,36 (2) provide for the utilization of sufficient special education programs or services,^[37] and then (3) the IEP must be properly and timely implemented.^[38] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.^[39]

In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.^[40] Parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[41] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”^[42]

A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”^[43] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.^[44] Instead, parents must “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.”^[45] In addition, a unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[46] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.^[47] A private school placement must be “proper under the Act.”^[48] This means

36 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). that the Private School must offer an educational program which meets the Student’s special education needs.^[49]

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their Prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.^[50] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”^[51] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."^[52] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”^[53]

Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District.^[54] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect.^[55]

“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.”^[56] Furthermore, direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.^[57] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”^[58]

FINDINGS OF FACT AND DECISION

After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant, and I find all the witnesses credible. I base the following on the record generated at the hearing.

The Student is currently REDACTED years old and was REDACTED years old during the 2021-2022 school year.^[59] The Student is classified by the CSE as a student with Autism.^[60] The Student has been diagnosed with Autism Spectrum Disorder and attended a special education preschool program from age three to five.^[61] The Student’s disabilities impact him in school. He has significant delays in expressive, receptive, and pragmatic language skills, fine and gross motor skills, and sensory processing.^[62] The Student displays non-compliance behaviors and often engages in self-stimulating behaviors, elopement, property destruction, tantrums, and verbal and physical aggression.^[63] The Student requires multi-sensory instruction provided in 1:1 and small group formats with a behavioral support paraprofessional and other related services in order to learn and make meaningful progress.^[64]

Prong 1

The Parents alleged that the DOE denied the Student a FAPE for the 2021-2022 school year because the DOE failed to: (1) conduct sufficient evaluations of the Student prior to the IEP meeting; (2) create an updated social history or conduct a classroom observation of the Student; (3) assess the Student’s social/emotional and behavioral needs including conducting an adequate FBA; (4) provide the Parents with the Student’s BIP; (5) include a qualified District representative as part of the IEP team; and (6) ensure that all participants including the Student’s Parents and teachers had access to all materials actually considered by the IEP team so that they could fully and meaningfully participate in the discussion and development of the Student’s IEP.^[65] The Parents also alleged that the DOE did not based the recommendations on the Student’s unique needs and instead, the recommended program was predetermined for the 2021-2022 school year.^[66]

As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney did not seek to admit any documentary evidence into the record.^[67] In addition, the DOE Attorney did not call any witnesses to testify at the hearing.^[68] The DOE declined to offer any evidence at all of a FAPE being provided to the Student for the 2021-2022 school year, and therefore, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the May 2021 IEP. The DOE did not even provide the IEP at issue in this case. It is through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.^[69] The DOE did not present any evidence at all and thus, could not rebut any of the Parents’ allegations.

Moreover, regardless of whether the DOE presented any witnesses or documentary evidence at the hearing, a review of the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2021-2022 school year. While it was not the burden of the Parents to show that the DOE failed to provide a FAPE to the Student, Parent 2 testified credibly that the CSE convened an IEP meeting in May of 2021 and Parent 2 participated in the IEP meeting.^[70] Prior to the IEP meeting, the DOE never conducted updated evaluations of the Student and the last psychoeducational evaluation of the Student conducted by the DOE was in February of 2017.^[71] As a result of the May 2021 IEP meeting, the CSE recommended a 6:1:1 special class on a part-time basis with adaptative physical education and the related services of occupational therapy, physical therapy, and speech-language therapy, as well as a 1:1 behavioral support paraprofessional.^[72]

The Parents did not agree with the CSE’s recommendations and believed the Student needed a full-time special education program.^[73] The Parents did not believe that the recommended program could provide the Student with the significant levels of individualized instruction and 1:1 support he needs in order to make meaningful progress.^[74] Despite their concerns, upon receiving a school location letter in June of 2021, the Parents contacted the proposed public school placement to obtain more information and Parent 2 was told that she would have to wait until September to visit the school.^[75] The Parents sent the DOE a letter (“Ten-Day Notice #1”) on August 18, 2021 and a second letter (“Ten-Day Notice #2”) on October 26, 2021 explaining their concerns with the CSE’s recommendations.^[76] The DOE did not respond to the Parents’ Ten-Day Notice #1 or Ten-Day Notice #2.^[77] Overall, I find Parent 2’s testimony regarding the events surrounding the May 2021 IEP credible, and I find that the DOE failed to offer the Student a FAPE for the 2021-2022 school year.

Prong 2

Next, I must consider whether the Parents’ unilateral placement at the Private School was appropriate for the Student. The hearing record shows that on August 20, 2021, the Parents executed an Enrollment Contract, enrolling the Student in the Private School for the 2021-2022 school year.^[78] According to the Enrollment Contract, the cost of the Student’s tuition was $98,000.^[79] Subsequently, on August 30, 2021, the Parents signed an Addendum to the Enrollment Contract, which details the costs of the related services for the Student including a behavioral support paraprofessional, speech-language therapy, occupational therapy, and physical therapy.^[80] The Parents are liable for the entire cost of tuition and related services under the terms of the Enrollment Contract, totaling $159,440.00.^[81] The Parents have not made any payments to the Private School, and therefore, the remaining balance owed to the Private School is $159,440.00.^[82] Parent 2 testified that the Parents could not afford to pay the tuition first and seek reimbursement, and their 2022 Tax Return shows an adjusted gross income of $REDACTED.^[83]

After a full review of the hearing record, I find that the evidence supports a determination that the Private School was appropriate for the Student for the 2021-2022 school year. I find that the Private School meets the Frank G. standard and provided the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of his unique circumstances. Primarily, the Private School was appropriate because it provided the Student with individualized instruction in small classes with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”^[84] The hearing record shows that the Private School has self-contained special education classrooms located in mainstream schools.^[85] The Student was enrolled in the Special Program at the Private School, which “specifically cater[s] to children with both learning disabilities and social limitations.”^[86] The Private School’s low studentteacher ratios allow for differentiated instruction to meet the Student’s individual learning needs.^[87] For the 2021-2022 school year, the Private School placed the Student in a special education classroom with a total of 7 students, 1 lead teacher and 1 assistant teacher.^[88] The other students in the class had a similar learning profile and similar academic skills.^[89]

Additionally, the Private School provided the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.^[90] The lead teacher in the Student’s classroom is a licensed and certified special education teacher and has a master’s degree in special education with over five years of experience.^[91] Therefore, I find that the teachers have sufficient training to teach the Student based on his unique needs and learning profile.

Furthermore, the Private School developed a specialized program for the Student with individualized goals and a tailored curriculum to meet the Student’s needs, and thus, the Student made progress at the Private School. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.^[92] While a student’s progress at a private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.^[93] In this case, I find that the Private School developed a specialized program for the Student, and the Student made progress during the 2021-2022 school year.^[94] The Student’s schedule consisted of English Language Arts, Grammar, Spelling, Writing, Vocabulary, Math, Physical Education, Journaling, Social Skills, Vocational Training, Current Events, Science, Prayers, and Religious Studies.^[95]

In reading, the teachers worked with the Student to address his ability to decode CVC words with precision.^[96] The Student demonstrated progress with identifying key details of a text and recognize essential information with cueing and prompts.^[97] The Program Director at the Private School testified that the teachers used the Lindamood-Bell LIPS Program and OrtonGillingham strategies to tailor instruction for the Student to make progress.^[98] The LIPS Program allowed the Student “to be able to have a stronger grip on the sound” of words and to “develop his phonemic awareness.”^[99] The Orton-Gillingham method and the use of manipulatives helped the Student with decoding and encoding, developing his symbol imagery of words.^[100] At the beginning of the 2021-2022 school year, the Student was reading at a mid-kindergarten level, but by the end of the year, his reading skills progressed to a Fountas and Pinnell Level E, and the Student became “comfortable blending, segmenting even complex syllables, [and] decoding and encoding complex syllables.”^[101]

Moreover, in math, the teachers use the MMR program to tailor instruction to meet the Student’s needs.^[102] At the beginning of the school year, the Student was only able to count by rote, but not accurately, and the teachers worked with the Student to teach him the function of numbers and the start of simple addition and subtraction.^[103] By the end of the school year, the Student was able to correspond numbers to objects and understand the relationship between numbers and quantities.^[104] I find that the tailored curriculum provided to the Student by the Private School was critical to enabling him to learn and make progress.

Furthermore, the Private School is appropriate for the Student because it provided the Student with appropriate related services including a 1:1 behavioral support paraprofessional, speech-language therapy, occupational therapy, and physical therapy, and the Student made progress in his related services.^[105] The Student had a 1:1 behavioral support paraprofessional and he received speech-language therapy three times per week for 30-minute sessions, occupational therapy four times per week for either 30-minute or 45-minute sessions, and physical therapy once per week for 30 minutes.^[106] In speech-language therapy, the speech-language pathologist used a token system and a high level of positive reinforcement to help the Student engage in the sessions and address his expressive and receptive language difficulties.^[107] The speech-language pathologist developed individualized goals for the Student to meet including engaging in conversations with peers and adults, answering questions based on a passage read to him, decreasing biting behaviors in 1:1 and group settings, and following multi-step directions to perform functional tasks.^[108] In occupational therapy, the occupational therapist addressed the Student’s weaknesses with motor coordination, attention, fine motor skills, visual motor, perception, oculomotor skills, and sensory processing delays.^[109] The Student demonstrated improvement with rigid behaviors, and with assistance, the Student can form letters with appropriate sizing, spacing, positioning, and legibility when writing.^[110]

Moreover, the Private School provided the Student with social skills classes, daily living skills training, and behavioral intervention and support to address his social/emotional challenges, non-compliance behaviors, and difficulty with completing tasks independently.^[111] For social skills, the teachers used the Social Thinking curriculum, which helped the Student make progress in greeting a person, showing respect, and connecting to that person.^[112] For daily living skills, the teachers made sure directions were “broken down to the smallest units of information of exactly what skills are necessary in order to execute that skill, and broken down to [the Student] step by step” until ultimately, the Student received certificates once he mastered a new skill.^[113] By the end of the school year, the Student was able to wash and dry his hands appropriately, tuck in his shirt, brush his teeth, close his coat using buttons, prepare for lunch, and clean up after lunch.^[114] Lastly, the Private School address the Student’s behavioral challenges by having a behavioral support paraprofessional work with the Student 1:1 separate from the class anytime the Student needed to be escorted out of the classroom and work independently.^[115] The teachers also used positive reinforcements in the classroom when the Student exhibited desired behaviors.^[116]

Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”^[117] I find that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard. Prong 3

Next, I must consider the equities. Overall, I find that the equities favor the Parents. Here, not only did the Parents fully cooperate with the CSE, but the evidence also shows that Parent 2 fully participated in the IEP process.118 The Parents’ cooperation and participation weighs in favor of the Parents’ request for a tuition award under Prong 3 of the Burlington/Carter standard.119 Here, Parent 2 participated in the May 2021 IEP meeting.120 Additionally, Parent 2 shared her concerns with the CSE and provided the necessary Ten-Day Notice of her intent to unilaterally place the Student in the Private School.121 The DOE did not submit any evidence at the hearing describing its response to either Ten-Day Notice #1 or Ten-Day Notice #2, if any, and Parent 2 testified that the DOE did not respond.122 Furthermore, the DOE did not contest the reasonableness of the total cost of the Student’s tuition including the cost of the related services for the 2021-2022 school year. Nonetheless, I find that the cost of the Student’s tuition including the costs of the Student’s paraprofessional, speech-language therapy, occupational therapy, and physical therapy is reasonable.

Nonsecular Instruction

The DOE Attorney did argue, in her closing statement, that if a tuition award is granted, it must be reduced because the Private School provided the Student with religious instruction.123 The Parents’ Attorney disagreed, and argued that nonsecular education provided by the Private School does not preclude an award of full tuition funding and/or reimbursement under the law.124 I agree with the Parents. In a recent decision, Application of a Student with a Disability, Appeal No. 23-133, the State Review Officer (“SRO”) considered whether a reduction of a tuition award is supported by relevant federal authority. The SRO discussed multiple Supreme Court and lower court cases and determined that in certain circumstances, “federal or state governments must provide reimbursement or payment to religious institutions under federal or state programs.”125 My own review of the same leads me to the same conclusion as the SRO. The principles derived from the federal authority “present[] no basis pursuant to the Establishment Clause for preventing the [Parents] from obtaining full reimbursement [or direct funding] for the services based on [their] individual choice to place the [S]tudent at a parochial school.”^[126] I find that the hearing record Ex. A; Ex. C; Ex. D. 119

M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012). 120

Ex. A; DPH Tr. 127-128. 121

34 C.F.R. § 300.148(d)(1)(ii); Ex. C; Ex. D. 122

DPH Tr. 134-138. 123

DPH Tr. 145, 158-159. I asked the DOE Attorney if she wanted to submit a brief on the issue of nonsecular education, but the DOE Attorney declined and rested on the record. 124

DPH Tr. 155-157. 125

Application of a Student with a Disability, Appeal No. 23-133 discussing Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 489 (1986), Zobrest v. Catalina Foothills School District, 509 U.S. 1, 13-14 (1993), Agostini v. Felton, 521 U.S. 203, 235 (1997), Mitchell v. Helms, 530 U.S. 793, 829-30 (2000), Zelman v. Simmons-Harris, 536 U.S. 639, 662-63 (2002), Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. 449, 464 (2017), Espinoza v Montana Dept. of Revenue, 591 U.S. _, 140 S. Ct. 2246 (2020), Carson as next friend of O. C. v Makin, 596 U.S.__, 142 S. Ct. 1987 (2022), and Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022). supports direct tuition funding in this matter as the purpose of a tuition award is “simply [to] make[] parents whole, by reimbursing them for expenditures which they would not have been compelled to make had the boards of education in question offered their children appropriate educational placements in the first instance.”^[127] Here, the District failed to provide a FAPE to the Student for the 2021-2022 school year. In addition, the Parents met their burden to show that the Private School was appropriate and met the Student’s unique special education needs, and the equities favor the Parents. Therefore, the Parents are entitled to a full tuition award under the Burlington/Carter analysis, and I find that the minimal amount of time the Student spent on religious studies does not preclude a full tuition award. After considering the entire hearing record, direct tuition funding is warranted in this matter to remedy the denial of a FAPE for the 2021-2022 school year.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby: ORDERED that the Parents’ claim for direct tuition funding including the cost of the Student’s related services for the Student’s unilateral placement at the Private School is GRANTED in full for the 2021-2022 school year. The New York City Department of Education shall directly pay the Private School in the amount of $159,440.00 within 35 days of the date of this Order.

SO ORDERED.

DATED: December 13, 2023

Robin Levin, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – EXHIBITS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 5/2/2023 6 pages

B. Due Process Response with Email Transmission Correspondence from redacted to redacted with 5/12/2023 4 pages

C. Email Confirmation Correspondence from redacted to redacted with 8/18/2021 4 pages

D. Email Confirmation 10/26/2021 4 pages

E. Psychoeducational Evaluation 2/23/2017 5 pages

F. Program Description Undated 3 pages

G. Daily Schedule 2021-2022 1 page

H. School Progress Report 4/6/2022 5 pages

I. Speech Language Progress Report 12/9/2021 2 pages

J. Occupational Therapy Progress Report 8/20/2021, 12/5/2021 1 page

K. Enrollment Contract with Addendum 8/30/2021 2 pages

L. Affidavit of Payment 1/25/2022 1 page

M. U.S. Individual Tax Return 2022 3 pages

DOE EXHIBITS

None

IHO EXHIBITS

None

Footnotes

[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Due Process Hearing will be referred to as “DPH Tr.” followed by the page number(s) within the transcript as needed.

[2] Ex. A.

[3] Id. I find that all of Parents’ claims can be resolved under the IDEA, and claims brought pursuant to Section 504 are otherwise subsumed.

[4] Id.

[5] Ex. A-2-3.

[6] Ex. A-3.

[7] Ex. A-5.

[8] Id.

[9] Five extensions of the compliance date were granted due to settlement negotiations (See Order of Extension 1, Order of Extension 2, Order of Extension 3, Order of Extension 4, and Order of Extension 5).

[10] DPH Tr. 58-63.

[11] DPH Tr. 55, 63.

[12] DPH Tr. 56-58. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”

[13] DPH Tr. 67-143.

[14] DPH Tr. 110-122.

[15] DPH Tr. 142.

[16] DPH Tr. 143-159.

[17] DPH Tr. 145.

[18] DPH Tr. 158-159.

[19] DPH Tr. 146.

[20] DPH Tr. 146-153.

[21] DPH Tr. 153-155.

[22] DPH Tr. 155-157.

[23] Ex. A.

[24] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).

[25] 20 U.S.C. § 1415(b)(6)(A).

[26] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[27] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[28] 34 C.F.R. §300.13.

[29] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[30] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).

[31] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[32] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[33] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[34] Endrew F.,137 S.Ct. 988, 999.

[35] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

[37] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).

[38] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[39] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[40] NY Educ. Law § 4404(1)(c)).

[41] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

[42] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[43] Frank G., 459 F.3d at 364-65; Gagliardo, 489 F.3d at 112.

[44] Frank G., 459 F.3d 356, 364; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

[45] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.

[46] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[47] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.

[48] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[49] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.

[50] See Carter, 510 U.S. at 16.

[51] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).

[52] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[53] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

[54] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

[55] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[56] Carter, 510 U.S. at 16; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

[57] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).

[58] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)

[59] Ex. A-1.

[60] Id.

[61] DPH Tr. 126-127.

[62] Ex. C; Ex. D.

[63] Id.

[64] Id.

[65] Ex. A-2-3.

[66] Ex. A-3.

[67] DPH Tr. 55.

[68] DPH Tr. 63.

[69] Endrew F., 137 S.Ct. at 1002.

[70] DPH Tr. 127-128.