Impartial Hearing Decision

CASE NUMBER: 601049 – NYC: 249113

FINDINGS OF FACT AND DECISION

Student’s Name: 1 0F REDACTED (“Student”)

School District: N.Y.C. Dept. of Ed., District REDACTED Impartial Hearing Officer: Peggy K. Chan

Date of Filing: 06/21/2023

Hearing Requested by: REDACTED (“Parents”)

Date of Hearing: 11/14/2023

Record Close Date: 12/27/2023

Date of Decision: 12/27/2023

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 14, 2023

For the Student:

REDACTED (hereinafter referred to as “Parents’ Representative 1”)

REDACTED (hereinafter referred to as “Parents’ Representative 2”)

REDACTED (hereinafter referred to as “Parent 1”)

REDACTED (hereinafter referred to as “Principal”)

For the Department of Education:

REDACTED (hereinafter referred to as “District’s Representative”)

BACKGROUND

On June 20, 2023, Parents, through counsel, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and its federal and state implementing regulations (Ex. DOE-1).

In the DPC, Parents allege, among other things, that the District failed to offer Student a free and appropriate public education (“FAPE”) for the extended 2021-2022 school year, in that the District failed to convene a meeting to develop an Individualized Education Program (“IEP”) and failed to offer a placement for Student for the extended 2021-2022 school year (Id.). By way of relief, Parents seek tuition funding for the cost of Student’s attendance at Private School for the extended 2021-2022 school year (Id.).

Considering the foregoing and as more fully discussed below, I find that under the Burlington/Carter analysis:^[2] a) the DOE failed to meet its burden in showing that it offered Student a FAPE for the extended

1F

2021-2022 school year, b) Private School offered Student an educational program with specially designed instruction sufficient to meet Student’s educational needs, and c) the equities support a reduction in the Parents’ requested relief.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[3] and its implementing regulations, ^[4]

2F 3F and the New York State Education Law^[5] and its implementing regulations. ^[6]

4F 5F

PROCEDURAL HISTORY

I was appointed as the impartial hearing officer on June 22, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1). On July 25, 2023, a pre-hearing conference was held. On August 17, 2023, September 11, 2023, October 2, 2023, and October 26, 2023, status conferences were held.

A due process hearing (“DPH”) was held on November 14, 2023. At the DPH, the District introduced 6 documents in support of its case. Exhibits DOE-1, DOE-2, DOE-4, and DOE-6 were admitted into the record without objection from Parents, and Exhibits DOE-3 and DOE-5 were admitted over objections from Parents^[7] (Tr. 63). Parents introduced 12 documents in support of their case, including the 6F testimonial affidavits of Parent 1 and Principal (P-K and P-L, respectively). Parents’ Exhibits P-B through P-L were admitted into the record without objection from the District (Tr. 62). A list of exhibits admitted into evidence is attached hereto as Appendix B. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

At the DPH, the District conceded that it failed to provide Student a FAPE for the extended 2021-2022 school year (Tr. 59). The District did not call any witnesses and rested its case on the documents alone (Tr. 54). The District’s Representative cross-examined Parent 1 and Principal (Tr. 69 & 121).

The District and Parents made opening and closing statements (Tr. 63-65, 134-152).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at the hearing, I make the following findings of fact and determinations.

Student is a REDACTED-year-old who is classified as a school age student with a Speech or Language Impairment (Ex. P-K-1; Ex. DOE-2-1). Student’s eligibility for special education supports and services is not in dispute.

Student presents with global developmental delays manifesting itself in the areas of academics, language and communication, and daily living skills (Ex. P-K-1). Socially, Student struggles with interacting with his peers and is very reserved and impulsive (Id.). Student has been receiving special education services since a very young age (Id.).

An IEP from a prior school year, dated April 24, 2020, noted that Student ranked in the Extremely Low range in his Full-Scale IQ Score, Verbal Comprehension Index, and Fluid Reasoning Index (Ex. DOE-4-1). Formal and informal assessments showed that Student had receptive and expressive language deficits (Id.). His verbal and nonverbal cognitive abilities were deemed far below those of his peers (Id.). Student was diagnosed with apraxia and presented with speech difficulty and poor motor planning (Id. at 2). Student scored in the Very Low range on reading and arithmetic measures (Id. at 1). He also exhibited very poor focusing skills and needed constant prompting to focus his attention on tasks (Id. at 2). Student had a history of being reserved, quiet, and keeping to himself (Id. at 3). He was hardly verbal and was often seen moving around the classroom and not listening to the teachers’ instruction (Id.). At the time, the Committee on Special Education (“CSE”) recommended that Student attend a 12-month placement in an 8:1+1 special education classroom, with the following related services: (1) group counseling, 1x30; (2) 1:1 occupational therapy (“OT”), 3x30; (3) 1:1 physical therapy (“PT”), 2x30; (4) 1:1 speech-language therapy (“SLT”), 4x30; and (5) group SLT, 1x30 (Id. at 20-22). The IEP also recommended that Student receive special door-to-door transportation in an air-conditioned vehicle with limited travel time of no more than 60 minutes (Id. at 25).

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.^[8] 7F

Prong I - Denial of FAPE

The IDEA provides that children with disabilities are entitled to a FAPE.^[9] A FAPE consists of specialized

8F education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[10] 9F

A FAPE is offered to a student when: (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.^[11] In order to meet its substantive FAPE

10F obligations, a school 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.”^[12] The Supreme Court has found that “[a]

1F reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”^[13] 12F

As to Prong I of the Burlington/Carter standard, the District failed to meet its burden. The District’s Representative indicated on the record that the District conceded Prong I, presenting no witnesses. While the District introduced an IEP dated April 24, 2020 into evidence, the IEP was over a year old at the start of the extended 2021-2022 school year (Ex. DOE-4). Similarly, the Prior Written Notice and School Location Letter, both dated June 1, 2020, relate to a prior school year and do not demonstrate that the District offered Student a placement offer for the extended 2021-2022 school year (Ex. DOE-6). Further, the District’s Due Process Response referenced only the April 24, 2020 IEP and no subsequent IEPs (Ex. DOE-2). Parent 1’s testimony that the CSE failed to convene an IEP meeting for Student prior to the start of the extended 2021-2022 school year is therefore uncontroverted (Ex. P-K-1). As such, I find that the District failed to offer Student an educational program or placement reasonably calculated to offer a FAPE for the extended 2021-2022 school year.

Prong II – Appropriateness of Parent’s Placement

A private school placement must be "proper under the Act."^[14] This means that the private school must

13F offer an educational program that meets the student's special education needs.^[15] Parents seeking 14F reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."^[16] Subject to certain limited exceptions, 'the same considerations and criteria

15F that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'"^[17] 16F

To meet this burden, 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.”^[18] The private school placement, however, “need not meet the IDEA definition of a free and 17F appropriate public education” or “state education standards or requirements.”^[19] The private school 18F placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.”^[20] 19F

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.^[21] 20F

The testimonies of Parents’ witnesses, along with Parents’ documentary evidence, demonstrate the following:

Private School is a small, bilingual Yiddish special education school designed to meet the specific and individual needs of students with significant language, speech, and social delays (Ex. P-L-1). Most of Private School’s students are Yiddish-dominant and instruction is often provided in both Yiddish and English (Id.).

Private School serves children ages 6 through 17 (Id.). For the 2021-2022 school year, there were approximately 37 students attending Private School (Id.). Classes typically consist of 6 students with 1 teacher and 1 assistant (Id.). Students are grouped according to academic and social/emotional levels and needs (Id. at 2).

Private School staff take part in curriculum development and professional training throughout the year. During the 2021-2022 School Year, numerous trainings were provided to the staff including floortime methodology, reading workshops focused on teaching decoding and comprehension skills, language processing difficulties, and developing handwriting skills (Id.).

Principal, who is the principal of Private School, has a Master’s degree in special education and is a New York State certified Special Educator with permanent certification (Id. at 1). In addition, Principal has advanced training in Orton Gillingham (“OG”) (Id.). Principal is involved in all aspects of school management and day-to-day activities in the school, which includes interviewing potential students, supervising and working with teachers and staff, hiring, and working with parents (Id.).

Principal is familiar with Student who started attending Private School in September 2020 (Id. at 2). Principal has observed Student formally and informally in classroom and therapeutic settings (Tr. 71). Student presented with academic, speech-language, and attentional delays (Ex. P-L-2). In addition, he also struggled with activities of daily living (“ADLs”), executive functioning, social skills, and interaction with his peers (Id.)

Due to Student’s academic and social delays, Private School’s goal was to help Student develop his language skills, increase his ability to remain focused, and improve his ADL skills (Id.). Private School developed an educational program for Student for the 2021-2022 school year (Tr. 81). Goals were developed for social skills, speech and language, ADL skills, academic subjects, as well as related services (Tr. 83). During the 2021-2022 school year, Student was placed in a class of 6 students, 1 teacher, and 1 assistant teacher (Ex. P-L-2). All the students in his class were in a 3-year age span and had similar language, social, intellectual and academic needs as Student (Id.; Tr. 72).

The main teacher in Student’s classroom was certified and trained in the OG program (Tr. 72 & 87-88). The assistant teachers, who mostly taught Judaic studies and occasionally other subjects, were trained in the subject areas in which they taught and were supervised under the classroom teacher (Tr. 84-85 & 89). While teaching was mostly conducted by the classroom teacher, students worked one-on-one with the assistant teachers as needed (Tr. 86 & 88).

Principal testified that the small classroom allowed Student to receive the attention he required to control his focus and give him the one-on-one support he needed (Ex. P-L-3). The 6:1+1 class size was critical as Student was unable to work independently and needed the material broken down into small pieces (Id.).

For the 2021-2022 school year, Student’s English Language Arts (“ELA”) program focused on a combination of reading and writing goals (Id.). Student began the year on a first-grade level (Id.). Student struggled with decoding and higher-level reading comprehension (Id.). The OG program was used to address his reading skills (Id.). By the end of 2021-2022 school year, Student was at the start of the second-grade level (Id.). He was able to read short words fluently and could answer basic comprehension questions (Id.). Student was able to apply the reading skills to understand short stories and to identify the plot and setting in a story (Id.).

At the beginning of the 2021-2022 school year, Student struggled greatly with writing skills, and it was challenging for him to complete short sentences (Id.). By the end of the school year, he was able to identify subject predicate in a sentence (Id.). Student also struggled with proper punctuation and grammar (Id.). With consultation from his occupational therapist in conjunction with the Handwriting Without Tears Program, Student worked to strengthen his writing skills (Id.). Student went from writing the alphabet at a very slow pace to being able to write a full sentence comfortably by the end of the school year (Id.).

At the beginning of the 2021-2022 school year, Student was doing math on a first-grade level and had weak foundational skills (Id.). To address these needs, Student was provided with manipulatives and visual learning that helped him with basic math concepts (Id.). In addition, the Stern Structural Arithmetic program was utilized (Id.). Emphasis was placed on functional skills to ensure future application (Id.). By the end of the school year, Student was able to add and subtract without regrouping, as well as solving two-step word problems (Id.).

To address his social and emotional needs, Student participated in a social skills period 4 days a week (Id. at 4; Ex. P-E-1; Ex. P-H-1). The Social Thinking program, along with role play, was used to address perspective-taking skills, self-awareness, and self-regulation (Ex. P-L-4). At the beginning of the 2021-2022 school year, Student would keep to himself and struggled to interact with his peers (Id.). He lacked friends and was unable to initiate and maintain conversations with his peers (Id.). By the end of the school year, Student began initiating basic interactions with his peers without prompting from staff (Id.). He also began to converse with his peers and developed self-awareness of what could be bothering him and how to communicate that to others (Id.).

During the 2022-2023 school year, Student received related services including OT (2x30), PT (2x30), Counseling (1x30), and SLT (4x30) (Id.). All related services were provided by licensed and certified providers who were part of Private School’s staff (Id.). The frequency, duration, and goals of the related services were determined based on the recommendation of the providers who had worked with Student in their respective domains during the previous school year (Tr. 77-79).

Student’s SLT sessions focused on improving his receptive, expressive, and pragmatic language (Ex. PL-4). Student made progress in his ability to respond to simple reasoning questions and communicate with longer phrases (Id.).

In OT, Student worked on his graphomotor skills, fine motor skills, visual perception, and sensory processing skills (Id.). By the end of the school year, Student improved his tripod grasp, as well as his graphomotor accuracy and proficiency (Id.). In addition, he improved his visual perception and motor skills (Id.).

Student’s PT program focused on improving body awareness and gross motor skills (Id.). Student made progress by the end of the school year and improved his gross motor skills and motor planning (Id.).

In counseling, Student worked on his communication skills, social awareness, understanding his emotions, and self-awareness (Id. at 5). Student made progress in developing his awareness of his emotions and his self-awareness (Id.).

Principal testified that the 12-month programming was crucial for Student as Student had experienced regression in skills when there was a break in services (Id.). Formal meetings between Student’s service providers and classroom teachers occurred approximately once a month, during which Student’s educators discussed his performance and monitored his progress (Id.).

Principal believed that Student made significant progress at Private School during the 2021-2022 school year, as evidenced by his improved social and ADL skills (Id.). Principal attributed much of Student’s progress to the small classroom setting, individualized instruction, and the supportive environment the staff created (Id.).

Principal’s testimony about Student’s progress during the 2021-2022 school year is corroborated by Parent 1’s testimony (Ex. P-K). Parent 1 testified that Student made “clear progress.” (Id. at 1). Private School’s small classes and individualized attention helped Student grow as a student and learner (Id.). Parent 1 saw Student’s language and math skills expand, as well as his ability to interact with his peers (Id.; Tr. 129-130).

I find that the totality of the circumstances showed that Private School’s educational offering was reasonably calculated to enable Student to receive educational benefits.^[22] Private School provided a 21F customized program designed to meet Student’s academic, social, emotional, and therapeutic needs. Private School’s small group instruction, direct teacher support, individualized goals, related services, and the various strategies and tools mentioned above, provided a structured and supportive setting that was required for Student to receive direct instruction in acquiring academic and social-emotional skills.

The District’s Representative argued that since Parents did not offer progress reports or assessments to support the witnesses’ testimonies that Student had, in fact, made progress, Parents failed to meet their burden of demonstrating the appropriateness of Private School placement (Tr. 135-137). Grades and progress reports, in and of themselves, are not necessarily dispositive of the appropriateness of the unilateral placement. Here, I find that the testimonies of Parents’ witnesses credibly demonstrated that Student did in fact make meaningful academic and social-emotional progress during the 2021-2022 school year. The District did not present any evidence to challenge the witnesses’ credibility or otherwise argue why their testimonies alone were insufficient to demonstrate Student’s progress.

Taken together, the testimonies presented by Parents’ witnesses and documentary evidence establish that Private School was appropriate and provided Student with educational instruction specifically designed to meet Student’s unique special education needs, supported by strategies that were necessary to permit Student to benefit from instruction for the extended 2021-2022 school year.^[23] 2F

I therefore find that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.

Prong III – Equitable Factors

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."^[24] In making that equitable

23F determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.^[25] 24F

The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide, either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, notice of the unilateral placement and specifically “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.”^[26] This statutory provision “serves the important purpose of giving the school system an 25F 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.”^[27] Although a reduction in 26F reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision.^[28] 27F

The record shows that the District had not held a CSE meeting for Student before the start of the extended 2021-2022 school year (Ex. DOE-1; Ex. P-K-1). I find that the weight of the evidence establishes that Parents cooperated with the District. On June 22, 2022, Parents notified the CSE in writing of the lack of IEP and placement offer for Student for the extended 2021-2022 school year (Ex. P-B-1). In the letter, Parents advised the CSE that they would be enrolling Student in Private School for the extended 2021-2022 school year and intended to seek reimbursement for the unilateral placement (Id.). The District did not present any evidence that it provided any substantive response to Parents’ concerns (Id.).

By way of relief, Parents seek retroactive direct funding for Student’s attendance at Private School for the extended 2021-2022 school year, in the amount of $106,203 (Ex. P-K-2; Tr. 150). The contracted cost of attendance, in accordance with the Summer Tuition Contract and Tuition Contract, are summarized below:

Summer of 2021

According to the Summer Tuition Contract, Student’s tuition rate at Private School for the summer of 2021 (from July 5, 2021 to August 16, 2021) was $10,500 (Ex. P-C-1; Ex. P-D-1). In addition, the Summer Tuition Contract also delineated a separate line item for related services totaling $4,050 (Id.). Specifically, the Summer Tuition Contract outlined the following schedule of related services and their costs: a. SLT (bilingual Yiddish): 5 x 30 weekly x 6 weeks x $145/hour = $2,175 b. OT: 2 x 30 weekly x 6 weeks x $125/hour = $750 c. PT: 2 x 30 weekly x 6 weeks x $125/hour = $750 d. Counseling: 1 x 30 weekly x 6 weeks x $125/hour = $375 (Id.).^[29] As such, the total contracted cost of Student’s attendance at Private School for the summer of 28F

2021, inclusive of the tuition and the costs of related services, was $14,550 (Id.). The record shows that Parents did not make any payments to Private School for Student’s attendance for the summer program (Ex. P-D-1).

10-Month 2021-2022 School Year

According to the Tuition Contract, Student’s tuition rate at Private School for the 10-month 2021-2022 school year was $48,000 (Ex. P-F-1; Ex. P-G-1). In addition, Private School contracted with Parents to provide transportation for $11,200 (Id.). Tuition Contract also delineated a separate line item for related services totaling $29,500 (Ex. P-F-1). Specifically, the Tuition Contract outlined the following schedule of related services and their costs: a. SLT (bilingual Yiddish): 5 x 30 weekly x 40 weeks x $145/hour = $14,500 b. OT: 3 x 30 weekly x 40 weeks x $125/hour = $7,500 c. PT: 2 x 30 weekly x 40 weeks x $125/hour = $5,000 d. Counseling: 1 x 30 weekly x 40 weeks x $125/hour = $2,500 (Id.).^[30] As such, the total contracted cost of Student’s attendance at Private School for the 10-month 2021-29F

2022 school year, inclusive of the tuition and the costs of related services and transportation, was $88,700 (Ex. P-G-1). The record shows that Parents did not make any payments to Private School for Student’s attendance for the 10-month 2021-2022 school year (Id.).

As the District provided no evidence challenging the rates of tuition, transportation, or related services for either the summer program or the 10-month program, I therefore find the cost to be reasonable. I also find that Student regularly attended Private School during the extended 2021-2022 school year (Tr. 114).

Together, the Summer Tuition Contract and the Tuition Contract for the 10-month 2021-2022 school year show that Parents owe Private School a total of $103,250 for the extended 2021-2022 school year ($14,550 for the summer + $88,700 for the 10-month school year). The amount owed is different from the amount Parents are requesting in Parent 1’s affidavit ($106,205). Since Parents provided no argument or evidence to explain why the requested amount is higher than what they had agreed to pay under the contracts, I find that in accord with the tuition contracts, Parents owe Private School a sum total of $103,250 for the extended 2021-2022 school year.

I. Deduction of tuition for religious instruction

In general, school districts are not required to fund religious portions of the school day or services that go beyond what is necessary to provide a FAPE or provide religious instruction.^[31] The intent of the 30F

IDEA is to authorize reimbursement for the cost of private special education services when a school district fails to provide a FAPE.^[32] Further, Courts have held that while the ultimate decisions about a disabled

31F child's education “rest in the hands of the parents, this right is not absolute.”^[33] The Court continued to 32F state that: "[I]n opting unilaterally to place [the child at a private Jewish school], though he was otherwise entitled to receive a [FAPE], [the parents] must accept that public monies will not fund it."^[34] 3F

In her closing statement, District’s Representative argued for a reduction in tuition funding for religious instruction (Tr. 136). In response, Parents’ Representative 1 argued that the “de minimis” amount of religious instruction at Private School does not preclude tuition funding and that the District is capable of paying the religious portion of the Private School tuition without violating the Establishment Clause (Tr. 151). Parents cited the SRO 23-133 decision^[35] as support of their position but ultimately “are

34F deferring the decision to the IHO as to whether she finds it appropriate to deduct tuition for religious instruction” (Tr. 151-152).

In his affidavit, Principal testified that based on Student’s summer 2021 schedule, Student attended school 3,060 minutes per week, of which 600 minutes were religious in nature (Ex. P-L-5). Based on Student’s 10-month schedule for the 2021-2022 school year, Student attended school 2,700 minutes per week, of which 560 minutes were religious in nature (Id.). Further, related services were 100% secular (Id.).

During cross-examination and upon my questioning, Principal provided additional details as to which of the classes listed in the summer and the 10-month school year schedules for the 2021-2022 school year were religious in nature.

Principal testified that the following classes listed in the summer schedule were religious in nature:

• Summer Schedule for Monday-Thursday:

o 8:30 am - 9:30 am Prayers o 10:00 am - 11:00 am Talmud/Chumash. • Summer Schedule for Friday: o 8:30 am - 9:30 am Prayers o 10:00 am - 10:30 am Talmud/Chumash • Summer Schedule for Sunday: o 9:00 am - 10:00 am Prayers o 10:30 am - 11:30 am Talmud/Chumash (Tr. 91-94 & 112; Ex. P-E). I credit Principal’s testimony and I find that these classes were religious in nature.

Principal testified that the following classes listed in the 10-month school year schedule were religious in nature:

• Schedule for Monday-Thursday:

o 10:00 am - 10:45 am Prayers o 11:15 am -12:00 pm Talmudical Studies o 12:00 pm - 12:30 pm Group Review o 2:00 pm - 2:15 pm Prayers o 2:45 pm - 3:05 pm Biblical Studies o 3:05 pm - 3:25 pm Group Review • Schedule for Friday: o 10:00 am - 10:45 m Prayer o 11:15 am - 12:00 pm Talmudical Studies • Schedule for Sunday: o 10:00 am - 10:45 am Prayers o 11:15 am - 12:00 pm Talmudical Studies o 12:00 pm - 12:30 pm Group Review (Tr. 102-106 & 113; Ex. P-H). Based on Principal’s testimony, I find that these classes constituted religious instruction.

In addition to the religious instruction Principal testified to above, the District argued that “Hebrew learning” should be considered religious and therefore be deducted from the tuition cost (Tr. 137). Principal testified that “Hebrew Reading” teaches students how to read Hebrew and that the course is cultural and not religious in nature (Tr. 104). Based on Principal’s explanation, I find that “Hebrew Reading” provided secular benefits to Student as it was intended to develop Student’s language skills; as such, I do not consider it to be religious instruction.

Further, Principal testified that “Ethics” consists of class discussions about morals, including teaching students “[h]ow to behave toward others, how to…accept other people…what is expected, how to behave towards elders or how to behave towards a friend” (Tr. 95-99). The teacher does not use a specific text in “Ethics” but rather chooses materials including pictures and stories as “springboard of conversation” (Tr. 97-98). As to “History,” Principal testified that the class teaches “mostly Jewish history” (Tr. 99). When asked whether “History” is religious in nature, Principal initially stated that “we can argue both ends of it” but ultimately testified that “it is not religious in nature” (Tr. 102-103). Principal stated that “Jewish history has all this…historical context and things that happened over history that’s not necessarily always religious” (Tr. 102). I credit Principal’s testimony and find that the “Ethics” and “History” classes imparted some secular benefits to Student and were not religious instruction.

Based on my review of Student’s schedule for the summer of 2021 (Ex. P-E), I calculated that Private School provided a total of 3,060 minutes of instruction per week to Student (Ex. IHO-I). Based on my findings of which classes constituted religious instruction, I find that 690 minutes per week were religious instruction, representing 22.55% of the total instruction (Id.).

Based on my review of the Student’s schedule for the 10-month 2021-2022 school year (Ex. P-H), I calculated that Private School provided a total of 2,640 minutes of instruction per week to Student (Ex. IHO-II). Based on my findings of which classes constituted religious instruction, I find that 910 minutes per week were religious instruction, representing 34.47% of the total instruction (Id.).

Having reviewed the parties’ arguments and case law, I find that deduction for religious instruction is warranted under the circumstances in this case. I find that the District is not required to fund the portions of the school day that were purely religious in nature. I distinguish the facts in this case from those presented in the SRO 23-133 decision. While the class in question in the SRO decision taught skills that “were transferrable to [the student’s] secular subjects,”^[36] here, the portions that I am deducting consist

35F of instruction that was purely religious in nature, as attested to by Principal. In addition, unlike the facts presented in SRO 23-133, I find that the religious portion of the schedule in this case was extensive in nature, despite Parents’ Representative 1’s characterization of it as “de minimis.” As such, I find it appropriate to deduct the portion of the tuition that was purely religious in nature.

a. Summer 2021 Program

Based on the foregoing, my final award is reduced by the portion that is religious instruction. The tuition rate for the summer of 2021 is hereby reduced by 22.55% from $10,500.00 to $8,132.25.

b. 10-Month 2021-2022 School Year

Based on the foregoing, my final award is reduced by the portion that is religious instruction. The tuition rate for the 10-month school year is hereby reduced by 34.47% from $48,000.00 to $31,454.40.

Parents are therefore entitled to funding of Student’s tuition at Private School for the extended 2021-2022 school year in an amount not to exceed $39,586.65. The separate line items for the costs of transportation and related services are addressed below.

II. Reduction in the cost of related services:

In her closing statement, the District’s Representative argued for the cost of counseling services to be deducted as Student “requires bilingual Yiddish services, and it does not appear that that is what was provided here” (Tr. 138). However, the District’s Representative’s argument directly contradicted the hearing record in which Principal testified that he believed the counseling sessions were provided in Yiddish (Tr. 105). While the outdated IEP dated April 24, 2020 recommended Student to receive counseling services in Yiddish (Ex. DOE-4-21), the District presented no evidence that it developed an IEP for Student for the 2021-2022 school year or determined what related services Student needed for the school year at issue. Even assuming, arguendo, that Student did require counseling in Yiddish, Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.^[37] Moreover, the hearing record shows that Student did, in fact, made social and emotional

36F progress in his counseling sessions (Ex. P-L-5). The District’s argument for deduction of counseling services is therefore without merit.

The District further argued for the cost of related services to be deducted to reflect the frequency and duration of the sessions that Student actually received in accordance with his schedule (Tr. 138-139).

The hearing record reflects several discrepancies between the related services that Private School billed for under the tuition contracts and what Student actually received. Notably, per the Summer Tuition Contract, Private School charged Parents 5 x 30-minute SLT sessions per week (Ex. P-C-1). However, Student’s summer schedule indicated that Student received SLT on Mondays through Thursdays from 12:00 pm to 12:30 pm, or only 4 x 30-minute sessions per week (Ex. P-E-3). In his affidavit, Principal also testified that Student received 4 x 30-minute SLT sessions per week (Ex. P-L-4). Upon my questioning, Principal clarified that the frequency and the duration of the related services listed in the summer schedule reflected the related services that Student actually received during the summer of 2021 (Tr. 113). Student’s schedule of the remaining related services (i.e., OT, PT, Counseling) for the summer of 2021 corresponded with the frequency and duration of what Parents contracted for (Ex. P-C-1; Ex. P-E-3).

The record also shows that, for the 10-month 2021-2022 school year, Private School contracted with and billed Parents for more sessions of related services than Student actually received. Per the Tuition Contract, Private School charged Parents 5 x 30-minute SLT sessions per week (Ex. P-F-1). However, according to Student’s daily schedule, he only received SLT on Mondays through Thursdays from 12:00 pm to 12:30 pm, or 4 x 30-minute sessions per week. Similarly, Private School contracted with and billed Parents for 3 x 30-minute OT sessions per week (Ex. P-F-1), when Student, in fact, only received OT on Mondays and Wednesdays, or 2 x 30-minute sessions (Ex. P-H-2). In his affidavit, Principal also testified that Student received 4 x 30-minute SLT sessions per week and 2 x 30-minute OT sessions per week (Ex. P-L-4). Principal further testified that the frequency and the duration of the related services listed in Student’s schedule reflected the related services that Student actually received during the 10-month school year (Tr. 113-114). Student’s schedule of the remaining related services (i.e., PT and Counseling) corresponded with the frequency and duration of what Parents contracted for (Ex. P-F-1; P-H-2).

Upon my questioning, Principal was unable to offer an explanation regarding the discrepancy between the frequency of the related services listed in the Tuition Contract and the schedule of services that were actually provided to Student (Tr. 116-117).

I find that under both the Summer Tuition Contract and the Tuition Contract for the 10-month school year, Private School contracted with and charged Parents for more sessions of related services than what Student actually received. I further find that the District is not required to fund related services sessions that Student did not actually receive. As such, the final award for related services is adjusted to reflect the frequency and duration of the sessions that Student actually received in accordance with his schedule.

In addition, the record shows that Private School contracted with Parents to provide related services for the 10-month school year based on a 40-week school year schedule, and the summer program based on a 6-week schedule (Ex. F-1; Tr. 117; Ex. P-C-1). I find that a 6-week summer program is aligned with the State mandate that a summer program operate for at least 30 school days during the months of July and August, or for typically 6 weeks.^[38] 37F

However, I decline to accept the determination by Private School for Student to receive related services for the 10-month school year based on a 40-week school year, without any evidence that Private School actually provided instruction for 40 weeks during the 10-month school year. Pursuant to State law, a 10-month school year (from September through June) consists of at least 36 weeks, based on the 180 instructional days in a 10-month school year.^[39] Parents did not present any evidence, such as Student’s 38F attendance record or the school calendar, to demonstrate that Private School actually provided instruction for 40 weeks or that Student actually attended Private School beyond the 36 weeks typically required by State law. As the contracted rate for the related services was dependent on the number of weeks Private School provided instruction to Student, Parents must demonstrate the number of weeks Private School actually provided instruction to Student during the 10-month school year in order to receive funding for the related services. As such, Parents are entitled to funding for related services provided to Student during the extended 2021-2022 school year based on Student’s attendance record to be submitted to the District’s Implementation Unit.

III. Transportation

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”^[40] Transportation may be deemed necessary “if in its absence a disabled child in private school 39F would be denied ‘a genuine opportunity for equitable participation in [a special education program],’…or special education program benefits “comparable in quality, scope, and opportunity for participation…[to those provided for] students enrolled in public schools.’”^[41] In addition, State law defines special education

40F 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.”^[42] 41F

Parents’ request for relief includes funding for Student’s transportation to and from Private School. Private School’s contract with Parents included the cost of transportation for the 10-month 2021-2022 school year for $11,200 (Ex. P-F; Ex. P-G). Parent 1 testified that she had requested Private School to provide transportation for Student (Tr. 126). On cross examination, Parent 1 testified that she was not aware that she could have made a request for transportation from the District, and that she did not recall whether she made a request for transportation from the District (Tr. 126).

District’s Representative argued for the transportation cost be deducted from the final award as the record does not demonstrate that Parents had requested transportation from the District (Tr. 139-140).

The record is clear that Student required transportation to and from Private School in order to benefit from special education. The District, in the April 24, 2020 IEP, had in fact determined that Student required special door-to-door, air-conditioned, time-limited transportation due to his disability (Ex. DOE4-25). Although the April 24, 2020 IEP expired prior to the 2021-2022 school year, there is no evidence in the record to show that Student’s circumstances had changed in the 2021-2022 school year. The IDEA is clear that the District has an affirmative obligation to provide transportation to a student if it is necessary for the student to benefit from special education, without any qualifier that parents have to first request transportation from the District. Parents, by a letter dated June 22, 2021, had notified District that they intended to unilaterally place Student at Private School for the extended school year (Ex. P-B). The District could have offered Student transportation at the time, even though it had failed to develop an IEP for Student prior to the start of the school year. However, there is no evidence that the District responded to Parents’ letter or offered to provide transportation for Student (Ex. P-K-1).

Based on Student’s needs relating to his disability, I find that special transportation is necessary to allow Student to benefit from Student’s special education program. Parents are therefore entitled to funding for the transportation cost.

Other than arguing for the deduction of the transportation cost from the final award, the District did not present any evidence to challenge the reasonableness of the cost. As such, I find the contracted transportation cost to be reasonable.

IV. Parents’ ability to directly pay for tuition Parent 1 testified that she was unable to directly pay for Student’s cost of attendance at Private School for the extended 2021-2022 school year (Ex. P-K-2; Tr. 124). The record demonstrates that Parents made a substantial household income in 2019 (Ex. P-J). Upon my questioning regarding Parents’ income, Parent 1 was unable to explain how she had determined that she was unable to afford Student’s tuition for the 2021-2022 school year (Tr. 131-132). Based on the hearing record, I find that Parents have not demonstrated an inability to pay the unilateral tuition cost (Ex. P-J).

Courts have broad discretion to grant appropriate relief, including retrospective direct payment of private school tuition.^[43] The IDEA” has a “clear purpose of providing a FAPE to disabled children regardless

42F of their financial resources.”^[44] Courts have generally authorized direct retrospective payment of tuition

43F for a prior school year regardless of the parent’s financial ability to pay. “The Court is unaware of any caselaw holding that proof of inability to pay is required to establish the propriety of direct retrospective payment.”^[45] “To require parents to fund their children's education in the first instance, unless they

4F demonstrate an inability to pay…skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment.”^[46] 45F

As the District conceded that it failed to provide a FAPE to Student for the extended 2021-2022 school year, it is equitable for the District to fund the portion of the cost of Student’s attendance that I find to be reasonable, regardless of Parents’ financial ability to pay. Therefore, I find that an award of retroactive direct tuition funding is appropriate in this case.

Overall, I find that the equities support Parents’ claim for tuition funding for the cost of Student’s placement at Private School for the extended 2021-2022 school year, subject to the reductions outlined above.

Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT: (1) Parents’ claim for direct funding for the tuition cost of Student’s unilateral placement for the extended 2021-2022 school year is GRANTED as follows: (a) The District shall directly fund the balance of Student’s tuition at Private School in an amount not to exceed $39,586.65 (Thirty-Nine Thousand, Five Hundred, Eighty-Six Dollars and Sixty-Five Cents); (2) Parents’ claim for direct funding for the cost of transportation for the 10-month 2021-2022 school year is GRANTED as follows: (a) The District shall directly fund the balance of Student’s transportation cost in an amount not to exceed $11,200.00 (Eleven Thousand and Two Hundred Dollars); (3) Parents’ claim for direct funding for the cost of Student’s related services for the 10-month 2021-2022 school year is GRANTED as follows: (a) No more than 4 x 30-minute sessions per week at a rate of $145.00 per hour for SLT sessions provided to Student during the 10-month school year based on Student’s attendance record to be submitted to the DOE’s Implementation Unit; (b) No more than 2 x 30-minute sessions per week at a rate of $125.00 per hour for OT sessions provided to Student during the 10-month school year based on Student’s attendance record to be submitted to the DOE’s Implementation Unit; (c) No more than 2 x 30-minute sessions per week at a rate of $125.00 per hour for PT sessions provided to Student during the 10-month school year based on Student’s attendance record to be submitted to the DOE’s Implementation Unit; and (d) No more than 1 x 30-minute session per week at a rate of $125.00 per hour for counseling sessions provided to Student during the 10-month school year based on Student’s attendance record to be submitted to the DOE’s Implementation

Unit.

(4) Parents’ claim for direct funding for the cost of Student’s related services for the summer 2021 program is GRANTED as follows:

(a) No more than 4 x 30-minute sessions per week at a rate of $145.00 per hour for SLT sessions provided to Student during the summer 2021 program based on Student’s attendance record to be submitted to the DOE’s Implementation Unit;

(b) No more than 2 x 30-minute sessions per week at a rate of $125.00 per hour for OT sessions provided to Student during the summer 2021 program based on Student’s attendance record to be submitted to the DOE’s Implementation Unit; (c) No more than 2 x 30-minute sessions per week at a rate of $125.00 per hour for PT sessions provided to Student during the summer 2021 program based on Student’s attendance record to be submitted to the DOE’s Implementation Unit; and (d) No more than 1 x 30-minute session per week at a rate of $125.00 per hour for counseling sessions provided to Student during the summer 2021 program based on Student’s attendance record to be submitted to the DOE’s Implementation

Unit.

(5) The District shall pay to Private School the costs of tuition, transportation, and related services within thirty-five (35) days of submission of a signed, notarized bill and attendance records supporting all the costs owed by Parents to Private School for Student’s attendance at Private School for the extended 2021-2022 school year.

Dated: December 27, 2023

/s/ Peggy K. Chan

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 – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT’S EXHIBITS

DOE-1 Due Process Complaint 06/20/23 2

DOE-2 Due Process Response 06/23/23 4

DOE-3 Transition Information 04/27/22 1

DOE-4 Individualized Education Program (IEP) 04/24/20 28

DOE-5 PT Progress Report 03/02/22 2

DOE-6 Prior Written Notice 06/01/20 6

PARENTS’ EXHIBITS

P-B. P-A Withdrawn (Duplicate of DOE-1) Parent letter 06/22/21 2 pages

P-C. contract 2021-2022 Summer 1 page

P-D. payment affidavit 04/14/22 Summer 1 page

P-E. schedule 2021-2022 Summer 3 pages

P-F. School year contract 2021-2022 1 page

P-G. Payment affidavit 04/14/22 1 page

P-H. Schedule 2021-2022 2 pages

P-I. Program Description N/A 2 pages

P-J. 1040 Federal form 2019 4 pages

P-K. Parent 1 testimony affidavit 11/01/23 2 pages

P-L. Principal testimony affidavit 11/03/23 6 pages

IHO’S EXHIBITS

IHO-I Deduction for Religious Instruction (Summer 2021) Undated 1

IHO-II Deduction for Religious Instruction (10-Month 2021- Undated 1 2022 School Year)

Footnotes

[2] See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985).

[3] 20 U.S.C. § 1400 et seq.

[4] 34 C.F.R. § 300 et seq.

[5] Educ. Law Art. 89 § 4404 et seq.

[6] 8 NYCRR § Part 200.

[7] Parents objected to these 2 documents being admitted into evidence, on the basis that they were created towards the end of the 2021-2022 school year and therefore not relevant to the allegation that the DOE did not create a timely IEP and placement for Student before the start of the extended 2021-2022 school year (Tr. 55-56). I ruled that these documents relate to the school year at issue and are therefore relevant (Tr. 57-58).

[8] NYS Educ. Law § 4404(1)(c).

[9] See 20 U.S.C. § 1400 (d)(1)(A).

[10] See 20 U.S.C. § 1401(9).

[11] Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

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

[13] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[14] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.

[15] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

[16] Gagliardo, 489 F.3d at 112.

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

[18] Id. at 112.

[19] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).

[20] Gagliardo, 489 F.3d at 115.

[21] Id. at 112, quoting Frank G., 459 F.3d at 364-65.

[22] See Frank G., 459 F.3d at 364-365.

[23] See Gagliardo, supra.

[24] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)

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

[26] 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1).

[27] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

[28] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267, 272 (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. v. Bd. of Educ., 459 F.3d 356, 376 (2d Cir. 2006); Mc. v. Voluntown Bd. Of Educ., 226 F.3d 60, 68 (2d Cir. 2000); Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).

[29] The Summer Tuition Contract listed the rates of the related services without indicating if they are hourly rates. Based on Private School’s calculations, I find that the rates listed in the Summer Tuition Contract represent the hourly rates of the related services.

[30] The Tuition Contract listed the rates of the related services without indicating if they are hourly rates. Based on Private School’s calculations, I find that the rates listed in the Tuition Contract represent the hourly rates of the related services.

[31] See, L.K. v. New York City Dep’t of Educ., 69 IDELR 90 (2d Cir. 2017). See also, Leiman v. Smith, 70 IDELR 142 (4th Cir. 2017) (“the IDEA does not mandate that a school instruct a student in his preferred religious practices”).

[32] See Forest Grove, 557 U.S. at 247; Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78 (Dist. Conn 2012).

[33] See Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78, citing J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606 (SDNY 2011).

[34] Id.

[35] See Application of a Student with a Disability, Appeal No. 23-133.

[36] See Application of a Student with a Disability, Appeal No. 23-133.

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

[38] See Application of a Student with a Disability, Appeal No. 23-028; Educ. Law § 3604(7); 8 NYCRR 200.1(eee).

[39] See id.

[40] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).

[41] Id. at 1375 (internal citations omitted).

[42] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww) (emphasis added).

[43] See Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ.¸769 F.Supp. 2D 403, 428 (S.D.N.Y. 2011).

[44] Maysonet v. New York City Dept. of Educ., 2023 U.S. Dist. Lexis 44769, *18 (S.D.N.Y. 2023);

[45] Ferreira v. N.Y. City Dep’t of Educ., 2023 U.S. Dist. Lexis 43032, *27-28 (S.D.N.Y. 2023); see also Cohen v. N.Y. City Dep’t of Educ., 2023 U.S. Dist. Lexis 171815, *12-14 (S.D.N.Y. 2023).

[46] Cohen v. N.Y. City Dep’t of Educ., 2023 U.S. Dist. Lexis 171815, *12-14 (S.D.N.Y. 2023) (internal citations omitted); see also Maysonet, 2023 U.S. Dist. Lexis 44769, *17; E.M. v. N.Y.C. Dep’t OF Educ., 758 F.3d 442, 453 (2d Cir. 2014); Ferreira v. N.Y. City Dep’t of Educ., 2023 U.S. Dist. Lexis 43032, *27-28 (S.D.N.Y. 2023) (“where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).