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Special Education Law
DECISIONMixed ResultIHO Case No. 249301

Impartial Hearing Decision

November 30, 2023·Richard A. Liese·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case No. 249301

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parents

Record Close Date: November 30, 2023

Hearing Officer: Richard A. Liese

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 14, 2023

For the Student:

REDACTED, Law Clerk

For the Department of Education:

REDACTED, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 7, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 17, 2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Esq., Attorney

REDACTED, Parent Student

REDACTED, Parent Student

REDACTED, Head of School

For the Department of Education:

REDACTED, Esq., Attorney

PROCEDURAL HISTORY

On June 27, 2023, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by REDACTED, Esq., as attorney for REDACTED and REDACTED (“Parents”), and on behalf of their son, REDACTED (“Student”), under Case No. 249301, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). (Ex. A).

I was appointed impartial hearing officer (“IHO”) for this case on June 28, 2023.

An initial prehearing conference with the representatives of the parties was held on August 14, 2023, and a status conference was held on September 7, 2023. An impartial hearing on the merits of the case went forward on October 17, 2023.

A list of the documentary evidence in this proceeding is appended to this decision. The compliance date for issuing a decision in this case has been extended. (IHO Ex. I – III).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is an REDACTED-year-old child who has been diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”), Autism Spectrum Disorder (“ASD”), and Developmental Disorder of Scholastic Skills (“DDSS”), and who has been classified by the DOE’s Committee on Special Education as a student with an Other Health Impairment. (Ex. 20-7, 27-1). The Student’s classification and his entitlement to special education programming and services are not in dispute.

On November 22, 2021, the CSE convened a review meeting at which it developed an Individualized Education Program (“IEP”) for the Student for the 2022-2023 school year. (Ex. A-1, 27-27). Among other things, the CSE recommended that the Student be placed in a 12:1+1 special class for his core academic subjects, and that he receive the related services of counseling, occupational therapy, and speech and language therapy. (Ex. A-1, 27-21, 27-22).

The Parents allege, among other things, that the 12:1+1 program recommended for the Student in the IEP was not appropriate for him, as the class size was too large, it would not allow the Student to focus on the lessons taught and enable him to make any academic gains, and it would not provide the Student with the high staff-to-student ratio he requires to address his academic skills, his social/emotional skills, and his life skills. (Ex. A-1). Additionally, the Parents allege that the Student’s social, emotional, and behavioral needs would not be addressed in the large 12:1+1 classroom setting recommended in the IEP, and that the Student requires placement in a smaller class in a small school setting in order to make appropriate progress. (Ex. A-1).

The Parents further allege that the DOE failed to develop an IEP for the Student for the full 2022-2023 school year, and that if failed to provide appropriate transportation for the Student throughout the 2022-2023 school year. (Ex. A-1, A-2).

The Parents contend that as a result, the DOE failed to provide the Student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (Ex. A-2). Consequently, the Parents placed the Student at the REDACTED (“Private School”) for the 2022-2023 school year. (Ex. A-2).

The within proceeding pertains to the Parents’ request that the IHO (i) find that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year; and (ii) order the DOE to (a) fund the Student’s unilateral placement at the Private School for the 2022-2023 school year; (b) reimburse the Parents for the out-of-pocket transportation expenses they incurred to transport the Student to and from the Private School during the 2022-2023 school year; and (c) reimburse the Parents for the out-of-pocket expenses they incurred for tutoring services [1] provided to the Student on days when he was unable to attend school due to the DOE’s failure to provide him with appropriate transportation services. (Ex. A-3).

The DOE did not present any witness testimony in this proceeding, and it instead placed a number of documents in evidence and rested on its documentary evidence and on certain documents placed in evidence by the Parents. (Tr. 28-34, 37-38; Ex. 18 – 31; Ex. B, C, E, F, G, H, I, J).

The Parents presented a case consisting of in-person testimony at the hearing from each of REDACTED, the Student’s father (“Father”), and REDACTED, the Student’s mother (“Mother”); direct testimony by affidavit from REDACTED, the Head of School (“Head of School”) at the Private School; additional in-person testimony from the Head of School at the hearing; and documents placed in evidence by the Parents’ attorney. (Tr. 34-37, 46-59, 63-69, 71-73; Ex. A - R).

LEGAL STANDARDS AND FRAMEWORK

Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001). The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]).

Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra v. Pawling Central Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130). The IEP must be “reasonably calculated to provide some ‘meaningful benefit’” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192).

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir.2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

If a school district fails to provide a FAPE to a student with a disability, parents may enroll their child in a private school and seek tuition funding/reimbursement for the cost of the program. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). An award of tuition funding/reimbursement would simply require a school district to pay for the expenses “it should have paid all along and would have borne in the first instance” had it offered the student a FAPE (T.P. and S.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009] [citation omitted]). A three prong test often referred to as the “Burlington/Carter Test” applies to determine whether parents are entitled to tuition funding and/or reimbursement: (1) was the IEP proposed by the school district for the student appropriate; (2) was the private placement selected by the parents appropriate to meet the student’s needs; and (3) does a consideration of the equities relating to the reasonableness of the parents’ actions support the relief requested. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985); Carter, 510 U.S. 7, 12-13; C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

In determining whether an IEP developed for a child is appropriate, a court must first ask “whether ‘the State complied with the procedures set forth in the Act’”, and second, “whether the IEP ‘developed through the Act’s procedures [is] reasonably calculated to enable the child to receive educational benefits’” (M.H. and E.K. ex rel. P.H. v. New York City Dept. of Educ., 685 F.3d 217, 245 [2d Cir. 2012], quoting Grim, 346 F.3d at 381). If a court determines there has been no procedural or substantive violation of the IDEA, it does not have to consider the remaining two prongs of the Burlington/Carter Test and the inquiry comes to an end. M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000).

Under the Education Law, school districts have the burden of proof, including the burden of persuasion and burden of production, in 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. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F., 746 F.3d at 76; R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

Failure to Provide a FAPE

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).

To that end, although the DOE did not present any witness testimony, it placed 14 documents in evidence, and it indicated that it was relying on an additional 8 documents that were placed in evidence by the Parents, to support the recommendations made in the IEP and to demonstrate that it provided the Student with a FAPE for the 2022-2023 school year.

However, most of those documents post-date the review meeting at which the IEP was developed, and since the majority of the documents relied on by the DOE in this proceeding were not available to, or reviewed by, the CSE when it developed the IEP, they are not relevant to determining the reasonableness of the CSE’s recommendations. See Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d 710,724 (S.D.N.Y. 2003) [holding that whether an IEP “was reasonably calculated to confer educational benefits on [the student] must be evaluated as of the time the CSE devised the IEP”]; Roland M. and Miriam M. v. Concord Sch. Committee, 910 F. 2d 983, 992 (1st Cir. 1990) [holding that “an IEP is a snapshot”, and that “[i]n striving for appropriateness, an IEP must take into account what was, and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated”] [internal quotation marks omitted]; Doe v. Belchertown Pub. Schs., 347 F. Supp. 3d 90, 99 (D. Mass. 2018) [indicating that an IEP “must take into account what was, and was not, objectively reasonable when the IEP was prepared and it is inappropriate to judge whether the IEP was reasonably calculated to provide FAPE [] using information that only became available after the IEP was promulgated”] [internal quotation marks omitted].

The documents in evidence that were relevant to the CSE’s determinations regarding the program and services recommended in the Student’s IEP were a Classroom Observation of the Student conducted on November 18, 2021 (“Classroom Observation”); a Student Progress Report, prepared by the Student’s speech/language provider, which reported the results of a Clinical Evaluation of Language Fundamentals-5 (“CELF-5”) that was administered to the Student over 4 dates between October 19, 2021, and November 10, 2021 (“SL Progress Report”); an Occupational Therapy and Physical Therapy Clinical Guide for the Student dated November 16, 2021 (“OT/PT Clinical Guide”; and together with the Classroom Observation and the SL Progress Report, the “IEP Review Documents”); a Prior Written Notice dated October 12, 2021 (“October 2021 PWN”); a Prior Written Notice dated November 23, 2021 (“November 2021 PWN”); and the Student’s IEP.

Notwithstanding the DOE’s reliance on the IEP Review Documents to demonstrate that the IEP was substantively valid, the IEP Review Documents are insufficient to establish that the DOE provided the Student with a FAPE for the 2022-2023 school year.

Simply placing in evidence documents that purport to relate to the school year at issue, without offering any testimony to explain their relevance or probative value, to confirm that they faithfully and accurately reported the Student’s present levels of performance and needs, or to demonstrate that the DOE adequately addressed the Student’s unique needs and offered him an appropriate program and placement for the school year at issue, fails to provide the “cogent and responsive explanation” that the DOE is expected to provide in order to show that it offered an educational program and services that were “reasonably calculated to enable the [Student] to make progress appropriate in light of his circumstances” (Endrew F., 137 S.Ct. at 1002).

The DOE’s failure to present any witness testimony to support the legitimacy of the IEP is of particular significance given the Parents’ contention that the 12:1+1 program offered to the Student for the 2022-2023 school year was inappropriate because it failed to adequately address his social, emotional, and behavior needs, and it failed to provide him with the small class size and high staff-to-student classroom ratio he requires in order to learn. See J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (E.D.N.Y. 2016) [holding that given the objections to the recommended program raised by the student’s parent, it was error to determine that an IEP was sufficient based solely on its contents, without testimony or documentary evidence to explain how the IEP’s recommendations addressed the student’s unique needs, and why the recommended program was reasonably calculated to enable the student to receive educational benefits].

Although the Second Circuit’s admonition against relying solely on documentary material to corroborate the provisions of an IEP was made in a different context, it is nonetheless germane to the DOE’s presentation of its case in this proceeding: an IHO should not have to engage in “post hoc rationalizations for how the CSE reached its conclusions” by “comb[ing] through the evaluative materials at the time the IEP was formulated, to match terms of the IEP to any assertion contained in any existing document” (L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 110-111 [2d Cir. 2016]). Quite the contrary, the Supreme Court has stated that “[a] reviewing court may fairly expect those authorities [school district staff] to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances” (Endrew F., 137 S.Ct. at 1002) (emphasis supplied).

Even if one were inclined to “comb” through the IEP Review Documents, the DOE did not place in evidence all of the documents on which the IEP team purportedly relied in developing the Student’s IEP, most notably the Psychoeducational Evaluation of the Student dated October 26, 2021 (“Psychoeducational Evaluation”), selected portions of which were summarized in several sections of the IEP.[2] Without access to the Psychoeducational Evaluation, it is impossible to determine whether the recommendations made in the Student’s IEP materially and accurately addressed or reflected all relevant evaluative information about the Student.

Moreover, the portions of the Psychoeducational Evaluation that are summarized in the IEP merely reported the results of (i) two selected reading subtests of the Wechsler Individual Achievement Test: Fourth Edition (“WIAT-IV”), which indicated that the Student, who was in 4th grade at the time, read words from a list at a slow pace; his word recognition abilities fell in the extremely low range and were equivalent to a grade K.4 reading level; and his reading comprehension abilities fell within the low average range and were at a 2nd grade level; (ii) two selected math subtests of the WIAT-IV, which indicated that the Student’s numerical operations abilities were at a beginning 2nd grade level, and his math problem solving abilities were at an upper 2nd grade level; (iii) an informal writing assessment, which indicated that the Student’s writing skills were immature, and his punctuation, grammar, spelling, and sentence structure were significantly below grade level; and (iv) the Wechsler Intelligence Scale for Children: Fifth Edition (“WISC-V”), which indicated that the Student’s Full Scale IQ fell within the very low range; he was functioning within the very low range, with abilities that could range toward the average range; he easily became confused, and he had a difficult time mastering tasks that are complex or not broken down into simplest form; he frustrates easily, which compounds his challenges and quickly turns into anger; his ability to maintain attention and focus is dependent on outside reminders and prompts, and is also dependent on whether he fully comprehends directives and task instructions; his focus sways due to internal cues and distractors, and although he can easily be refocused to task, it is difficult to break through his barrier of confusion when he is unable to verbalize areas of weakness, which makes it hard for instructors to reach directly to his weakness and help support his academic struggles; his productivity is low, which makes work sample analysis challenging; and he struggles with motivation to work, with attention and focus, and with cognitive weakness in abstract reasoning skills and interpretations.

The IEP also included a summary of the results of selected portions of recent classroom assessments of the Student’s reading and math skills. According to the IEP, the Student’s independent reading level was far below grade level standards, his reading comprehension was far below grade level, his reading vocabulary was below grade level, and his overall math skills were far below grade level.

The IEP further indicated that according to the Student’s teacher, the Student tended to be a “hands on learner”; he struggles to attend to verbal instruction and directives; he benefits from visual supports while learning; he will often become defiant and passive when directed to perform a task; and he requires a lot of individual support to complete tasks. Additionally, the IEP reported that the Student struggles with attention, focus, and concentration; his ability to take parts and then integrate them into whole concepts is exceptionally weak, making the ability to process information and interpret new and previously learned information a significant challenge; it is difficult for the Student to cope effectively with benign situations; and he is often agitated and lacks the ability to work and engage independently or age appropriately within the school building.

Yet, nowhere in the hearing record is there any documentary or testimonial evidence that explains how the Student’s difficulties in each of these areas would be appropriately addressed in a class of 12 students taught by one special education teacher, with the assistance of a classroom paraprofessional, and why the 12:1+1 program was reasonably calculated to enable him to receive educational benefits. That a 12:1+1 program is intended generally to address the needs of students whose management needs interfere with the instructional process does not explain how it will address the individual needs of this Student, and why it is reasonably calculated to enable this Student to receive educational benefits.

As for the IEP Review Documents, they also fail to address or explain how the 12:1+1 program recommended in the IEP would appropriately address the Student’s academic needs, and why the 12:1+1 program was reasonably calculated to enable him to receive educational benefits.

At the time the Classroom Observation was conducted, the Student was in a co-teaching class, and the observer noted that the Student was distracted throughout the duration of the observation, he had difficulty following directions, and he did not produce any classwork or participate in the lessons, despite encouragement from the teachers. While one might conclude from the Classroom Observation that a co-teaching class was not an appropriate placement for the Student, the report does not by default imply, let alone indicate, that the 12:1+1 program recommended for the Student was an appropriate alternative.

The SL Progress Report and the OT/PT Clinical Guide each described the Student’s related service needs and the therapies that were recommended to address them, but neither addressed his academic program and instructional needs. Therefore, the SL Progress Report and the OT/PT Clinical Guide also failed to support the 12:1+1 program recommended for the Student.

Thus, the DOE failed to offer any cogent and responsive explanation for its decision to recommend a 12:1+1 program for the Student. Consequently, the DOE failed to sustain its burden under the Education Law and failed to establish that it provided the Student with a FAPE for the 2022-2023 school year.

Furthermore, the DOE did not object to or contest the substance of the evidentiary material submitted by the Parents in support of their claims, and it offered no documentary evidence contradicting the Parents’ evidentiary material or any rebuttal to the testimony provided by the Parents’ witnesses. Consequently, the Parents are entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and witness testimony to the extent they are credible and are not contradicted by the hearing record. See Comdyne I, Inc. v. Corbin, 908 F. 2d 1142, 1149 (3d Cir. 1990) [noting that the consequence of a defendant’s failure to contest the claims alleged in a complaint is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”].

Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2022-2022 school year. Accordingly, the Parents have met the first prong of the Burlington/Carter Test for tuition funding and/or reimbursement.

The Student’s Placement at the Private School When parents unilaterally place their child in a private program and seek tuition funding and/or reimbursement for that program, they must demonstrate that the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d at 364). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d at 364 (citing Carter, 510 U.S. at 14).

Furthermore, parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007]).

The hearing record establishes that the Private School appropriately addressed the Student’s needs during the 2022-2023 school year.

According to a Neuropsychological Evaluation of the Student that was conducted over 3 dates between August 30, 2022, and October 19, 2022 (“Neuropsychological Evaluation”), the Student was functioning below average intellectually relative to his peers, and his academic functioning ranged from average to below average in reading, average to low average in writing, and average to low average in math. The Clinical Neuropsychologist who conducted the Neuropsychological Evaluation diagnosed the Student with ADHD, ASD, and DDSS, and he indicated that the Student was struggling across all aspects of his life -- social, emotional, and academic; that he had a limited understanding of what was expected in peer interactions, including being empathetically attuned and taking others’ perspectives; that he presented with rigid, black-and-white thinking, and he did not deal well with change or frustration, which lead to unwanted behaviors; that he was unable to control his behaviors, which resulted in unwanted consequences to him and to others; that he was easily frustrated and unable to handle feelings that arose, leading to aggression, most notably toward his Mother; that he struggled to follow the rules of a setting, not because he was bad or oppositional, but because he was driven by whatever internal stimuli pushed him and to which he reacted; and that he struggled with attention and executive functioning, which made learning difficult.

The Clinical Neuropsychologist further indicated that as a result, the Student was behind his peers in all academic areas, and that it was the combination of his ASD and ADHD that prevented him from being more effective, leading to his difficulties at home and in school.

To address the Student’s social, emotional, and academic difficulties, the Clinical Neuropsychologist recommended, among other things, that the Student be placed in a school designed for children who struggled behaviorally, socially, and emotionally, and he further indicated that the Student would not begin to make academic progress unless these components were in place.

Additionally, the Clinical Neuropsychologist recommended a structured academic program for the Student that focused on developing his phonemic awareness and reading fluency skills, targeted his weak reading comprehension skills, worked on improving his writing fluency, math computation, and math fluency skills, and provided him with speech services to address his articulation and pragmatic language weaknesses, and occupational therapy services to remediate his fine motor deficits.

The hearing record indicates that the Student’s program at the Private School was consistent with these recommendations.

According to the Head of School’s uncontroverted testimony, the Private School is a small school for students in grades K through 8 that designs its program to address the needs of students who struggle with behavioral and social/emotional challenges. The Private School’s behavior program is based on the principles of Applied Behavior Analysis “(ABA”), particularly regarding behavior management, which provides administrators and staff with feedback on both positive and negative student behaviors. Each student at the Private School has a behavior plan that is developed by an outside behavior specialist (“Behavior Specialist”), with input from an administrator who is both a Board Certified Behavior Analyst (“BCBA”) and a certified special education teacher with a master’s degree in special education, and from the student’s classroom teacher, to ensure that the behavior plan is individualized to the student and appropriately addresses the student’s needs.

Additionally, the Private School develops an academic plan for each student that establishes academic goals which are individualized to their specific needs, and it creates social goals for each student that are also individualized to their specific needs and which are formally measured on a periodic basis to ensure that the student is making progress.

The Private School’s teachers, assistants, paraprofessionals, and specialty staff all receive training in the school’s behavior program, which establishes behavior goals for each student at the beginning of the school year, and which allows them to earn points throughout the school day toward a reward that is given at the end of the week based on their success in meeting their behavior goals. Students’ goals are updated weekly based on a formula that is reviewed by the student’s team, which includes the student’s classroom teacher and members of the Private School’s administrative staff.

The Private School also provides its students with executive functioning skills services, and the related services of speech and language therapy (“SLT”), occupational therapy (“OT”), and counseling.

During the 2022-2023 school year, the Student was placed in a class of 8 students who were functioning at a similar academic and social-emotional level, thereby ensuring that he was placed in a class of appropriate peers. The class was taught by a lead special education teacher with multiple years’ experience as a special education teacher, and 3 teaching assistants who supported and assisted the lead teacher in the classroom, thereby ensuring that the Student received individualized behavior support as well as 1:1 and small group instruction throughout the school day.

The Student’s classroom staff were supported and supervised by the Head of School and by other members of the Private School’s administrative staff, and all teachers, teaching assistants, and related service providers who worked with the Student held formal monthly team meetings to review and discuss the Student’s overall functioning and performance. Additionally, the Student’s related service providers pushed into his classroom once or twice a week to observe lessons, provide feedback, and ensure carryover into the classroom of the skills he learned in his therapy sessions.

The Student’s behavior and social/emotional challenges were addressed during the 2022-2023 school year through his individualized behavior plan, which was developed for the Student by the Private School in consultation with the Behavior Specialist, as well as the behavior and social goals that were established for him as part of his behavior plan, his daily counseling sessions, and the direct social skills instruction he received each day in his Social Thinking class that included push-in support from a social worker or speech therapist.

The hearing record indicates that the Student made behavioral progress during the 2022-2023 school year, as he worked to minimize teasing and putting down his peers; he became more compliant to a teacher’s directions; he minimized the use of foul language; and he reduced his aggressive and destructive behaviors.

Additionally, the Student made social progress during the 2022-2023 school year, as his interpersonal communication skills improved by participating in class activities and lessons that were devoted to showing an interest in conversations, showing an interest in friends, and learning how to leave a conversation politely; his ability to “read the room” and act according to each room scenario improved; his ability to identify how a tone of voice can change the meaning of a sentence or situation improved; and his ability to identify a problem, develop possible solutions, and decide on a plan of action, improved.

According to the Head of School, once the Student’s behavioral and social skills needs were addressed, the Private School was able to address his academic deficits.

The Head of School testified that the Student’s academic skills were assessed at the beginning of the school year, and goals were then created for him in all academic areas based on the results of the assessment and discussions among his educators and the Parents.

To address the Student’s reading deficits, the Private School provided him with reading instruction on a 1:1 and small group basis using the Wonders Reading and Writing Workshop program, the Literature Anthology program, and the i-Ready Computer program, with particular attention given to his reading, decoding, spelling, and comprehension skills. The hearing record indicates that the Student made progress in his reading skills during the 2022-2023 school year, as he was able to read on-level texts orally with accuracy and at an appropriate rate; he applied grade-appropriate phonics skills to decoding words; he recognized and read grade-appropriate irregularly spelled words and could decode regularly spelled two-syllable words; he could read a list of grade-appropriate sight words; and he was able to describe how the beginning of a story serves as an introduction, how the ending of a story serves as a conclusion, and how characters in a story responded to major events and challenges.

The Private School also addressed weaknesses in the Student’s writing and grammar skills, using the Wonders Writing Workshop program, which focused on developing his writing skills through the use of graphic organizers to help him generate a topic with accompanying supporting details, and by emphasizing the mechanics of writing such as proper sentence structure and grammar. The hearing record indicates that the Student made progress with his writing abilities during the 2022-2023 school year, as his ability to complete assigned tasks with minimal prompting improved; he was able to write 3 sentences on a topic using 3 supporting details; he could retell key events in a story using 3 complete sentences; he could identify common and proper nouns and the subject and predicate in a sentence; he was able to use apostrophes to form contractions and frequently occurring possessives; and he was able to write opinion pieces in which he introduced the topic, stated an opinion, supplied a reason for the opinion, and provided a sense of closure, as well as informative/explanatory texts.

To address the Student’s math deficits, the Private School provided him with math instruction in a small group of only 2 students that was based on Common Core Learning Standards, and which gave him the level of individualized instruction and support he needed to learn. The hearing record indicates that the Student made progress in his math skills during the 2022-2023 school year, as he was able to use order and grouping to multiply; he was able to multiply 2 numbers in one or more ways, and use multiplication to solve division equations; he was able to solve multiplication and division problems with factor/divisors up to 12; he was able to round a 3-digit number to the nearest tens, hundreds, and thousands place, and add or subtract them; he was able to use place value to multiply by tens and solve real-life problems; he was able to solve one-step word problems using multiplication and division; and he was able to use place value to read, write, round, add, and subtract 4-digit numbers, and to use place value to multiply by 10, 100, and 1,000.

The Private School also provided the Student with weekly sessions to address delays in his executive functioning skills; appropriate levels of SLT services to address delays in his receptive, expressive, and pragmatic language skills; and appropriate levels of OT services to address delays in his fine motor/manipulation, visual motor, and sensory modulation/regulation skills. The hearing record demonstrates that the Student made progress during the 2022-2023 school year toward the goals that were established for him in his executive functioning, SLT, and OT sessions.

The weight of the evidence and the credible testimony from the Head of School clearly demonstrate that the Student benefitted from the highly structured program and the individualized behavioral and academic instruction and supports he received from the Private School during the 2022-2023 school year. The Private School provided the Student with the small school environment, small class size, low student-to-teacher ratio, individualized behavior program and social/emotional supports, 1:1 and small group academic instruction and support, executive functioning skills instruction and support, and related services he required, and he made appropriate progress.

Based on the foregoing, the Private School was an appropriate placement for the Student for the 2022-2023 school year, and the Parents have satisfied the second prong of the Burlington/Carter Test for tuition funding and/or reimbursement.

Equitable Considerations

To receive an award of tuition funding and/or reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief” (Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” (Gagliardo, 489 F. 3d at 112, citing Carter, 510 U.S. at 16). “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” (N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 [S.D.N.Y. 2009] [citation omitted]).

The hearing record does not demonstrate that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds” (Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 [S.D.N.Y. 2008]). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parents interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2022-2023 school year.

To the contrary, the hearing record establishes that the Parents cooperated with the CSE during the IEP and placement process, as the Student’s Mother actively participated in the review meeting at which the Student’s IEP was developed; she provided input regarding the Student’s strengths and weaknesses; she expressed her concerns to the CSE about the Student’s ability to self-manage his thoughts and emotions and the impact it has on him academically, emotionally, and socially; she expressed her desire that he be placed in the least restrictive setting possible; and she was willing to consider the public school program offered to the Student.

Additionally, the Parents, through their attorney, provided the CSE with the statutorily required prior written notice in which they advised the CSE, among other things, that they had not received a recent IEP or public school placement for the Student; that the public school program recommended in the Student’s most recent IEP was not appropriate; that the most recent IEP’s recommendations lacked sufficient behavioral support for the Student; and that consequently, they would be enrolling the Student at the Private School for the 2022-2023 school year and would be seeking tuition funding for that placement.

One of the purposes of the statutory notice provision is to provide the school district with the opportunity “to reassess the IEP and cure any deficiency in it, thus minimizing the school's expenses by allowing it to adjust its plans and provide the child with what the parents, at least, consider to be a FAPE” (Bd. of Educ. of the Yorktown Cent. Sch. Dist. v. C.S. ex rel. M.S., 990 F.3d 152, 159-60 [2d Cir. 2021]). The Parents’ statutory notice thus provided the DOE with at least 10 business days to respond to and address their concerns regarding the 12:1+1 program recommended for the Student. Yet, the DOE failed to present any evidence or witness testimony to demonstrate that it took any steps in response to the Parents’ statutory notice to address their concerns regarding the appropriateness of the program recommended in the Student’s IEP.

The hearing record thus establishes that the Parents “cooperated with the [CSE] throughout the process to ensure their child receive[d] a FAPE” (J.S. and A.G. ex rel. J.G. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 671 [S.D.N.Y. 2011]; see also C.L. and G.W. ex rel. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 825, 840 [2d Cir. 2014] [noting that “[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA”]; Neske v. Porter and New York City Dept. of Educ., 2022 WL 3290561, at *4 (S.D.N.Y. 2022) [noting that courts consider, among other things, whether the parents attended and participated in the IEP meeting, provided timely notice of their intent to place their child in a private school, intended to consider a proposed public school placement, or unreasonably caused a delay in the process, in determining whether the parents cooperated with the CSE and acted reasonably]; GB and DB ex rel. AB v. New York City Dept. of Educ., 145 F. Supp. 3d 230, 257 [same]; I.B. and Z.B. ex rel. B.B. v. New York City Dept. of Educ., 2016 WL 1069679, at *18 (S.D.N.Y. 2016) [determining that “[i]n the absence of evidence demonstrating obstructive conduct on the part of the parents, equitable considerations militate in favor of an award of relief to parents who have been denied their rights under the IDEA”].

Based on the foregoing, the Parents have met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding to the Private School.

The hearing record establishes that the Parent incurred an obligation to pay an aggregate tuition of $110,000, for the Student’s enrollment at the Private School for the 2022-2023 school year, consisting of a base tuition of $95,000, and an additional $15,000 for the services of the Behavior Specialist who assisted in the development of the Student’s individualized behavior plan.

The Supreme Court has indicated that “[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”, and that “[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable” (Carter, 510 U.S. at 16).

Here, the base tuition and the additional cost for the services of the Behavior Specialist are reasonable, particularly considering the Student’s need for a full-time highly structured education program, small classes with a low student-to teacher ratio, an individualized behavior intervention program developed in consultation with the Behavior Specialist, 1:1 and small group academic instruction and support throughout the school day, executive functioning skills instruction and support, and appropriate levels of SLT, OT, and counseling services. See M.H. and E.H. ex rel. P.H. v. New York City Dept. of Educ., 712 F. Supp. 2d 125, 170 (S.D.N.Y. 2010), [determining that the private school’s tuition was not unreasonable given the student’s need for 1:1 ABA services throughout the school day and the high cost of living in New York City]; Mr. and Mrs. A. o/b/o D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) [determining that the private school’s tuition was not unreasonable in light of the education and related services the school provided]; W.W. and D.C. ex rel. M.C. v. New York City Dept. of Educ., 160 F. Supp. 3d 618, 629 (S.D.N.Y. 2016) [determining that the private school’s tuition was reasonable, taking into account the specialized nature of the instruction provided].

According to the Student’s class schedule and the uncontroverted testimony from the Head of School, 6% of the Student’s instructional time at the Private School was religious in nature.[3] Accordingly, $89,300, or 94% of the Student’s base tuition obligation, is properly allocated to the secular instruction and related services he received at the Private School during the 2022-2023 school year.

The Parents have requested direct funding of the tuition obligation they incurred for the Student’s unilateral placement at the Private School for the 2022-2023 school year. Direct retrospective tuition funding to a private school is an appropriate remedy under the IDEA, even without evidence of the Parents’ inability to pay the tuition obligation, as proof of inability to pay is not required to establish the propriety of direct retrospective payment for the tuition obligation incurred by parents. See Ferreira v. New York City Dept. of Educ., 2023 WL 2499261, at *10 (S.D.N.Y. 2023) [noting that 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”, and holding that “direct retrospective payment is an appropriate remedy” without requiring the parents to provide proof of their inability to pay]; Cohen v. New York City Dept. of Educ., 2023 WL 6258147, at *5 (S.D.N.Y. 2023) [noting that placing a burden on parents to establish financial inability to pay “entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at ‘no cost to the parent’”, and finding that the parents “[were] not required to establish financial hardship in order to seek direct retrospective payment to [the private school]” for their son’s placement.] [emphasis in original]; Maysonet v. New York City Dept. of Educ., 2023 WL 2537851, at *6 (S.D.N.Y. 2023) [indicating that the DOE “offers no persuasive reason for requiring Plaintiffs to front the costs of tuition for services rendered almost five years ago (even assuming they could do so) and then receive reimbursement”, and holding that “[i]n light of the IDEA’s clear purpose of providing a FAPE to disabled children regardless of their financial resources, an award of direct tuition payment is appropriate”].

Accordingly, the Private School is entitled to be paid the aggregate sum of $104,300, which amount is comprised of the $89,300 that is properly allocated to the secular portion of the instruction and related services the Student received at the Private School during the 2022-2023 school year, plus the full cost of the services of the Behavior Specialist in the amount of $15,000. Additional Relief Requested

A. Transportation Expenses

The Parents have requested reimbursement for out-of-pocket expenses they incurred to transport the Student to and from the Private School during the 2022-2023 school year.

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” (Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997]) (citing 20 U.S.C. § 1401[a][17]) (internal quotation marks omitted).

Transportation may be deemed necessary “if in its absence a disabled child in private school 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” (Donald B., 117 F.3d at 1375) (internal citations, brackets, and quotation marks omitted).

In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs” (Education Law §§ 4401[1], 4401[2], 4402[4][a]; 8 NYCRR § 200.1[ww]).

If a parent’s unilateral placement is determined to be appropriate, “[t]he language and spirit of the IDEA encompass reimbursement for reasonable transportation expenses” that are required to assist a child to benefit from their special education program (S.L. ex rel. Loof v. Upland Unified Sch. Dist., 747 F.3d 1155, 1160 [9th Cir. 2014] (ellipsis and internal quotation marks omitted).

According to testimony from the Student’s Father, the bus transportation services provided to the Student by the DOE during the 2022-2023 school year were inconsistent, and there were days when the bus would either arrive late, which resulted in the Student missing a significant part of the school day, or not show up at all, which required him to arrange for private transportation services to take the Student to the Private School.

Additionally, the Student’s Mother testified that even on days on which the DOE provided the Student with bus transportation to the Private School, she would, on occasion, be notified that the bus company could not transport the Student home from the Private School, due to a shortage of drivers. According to the Student’s Mother, on those occasions, they also had to arrange for private transportation services to bring the Student home from the Private School.

However, the Parents failed to present any credible documentary or testimonial evidence which would establish the number of days the Student was required to use private transportation services to travel to and from the Private School during the 2022-2023 school year, or which would establish any amount they paid to transport him to and from the Private School.

Instead, the Student’s Father merely testified that there were “many, many days, especially in September and October of 2022, that the bus would never show up”; that “the problem just would not resolve, and would not be consistent, you know, for a minimum of the first two months”; that “starting approximately November, the bus would come more regularly”; and that “on some days we would be able to arrange transportation, private transportation”, and “on other days, it was not available”. When asked whether he had a record of the days on which the DOE failed to provide the Student with bus transportation, the Student’s Father indicated that he did not have a full record of the dates the Student was not attending the Private School during the 2022-2023 school year, but that he thought he would be able to get the information from the Private School. However, no such information was placed in evidence in this proceeding.

As for those days on which the Student was able to attend the Private School, but required private transportation services to return home, the Student’s Mother explained the reason the Student needed the private transportation services in those situations, but she did not indicate on which days or on how many days this occurred. Although the Student’s Mother testified that she had the records of all the text messages she exchanged with the bus matron that would help to establish the dates, they were not placed in evidence in this proceeding.

The testimony from the Student’s Father regarding the expenditures made for private transportation services used to transport the Student to and from the Private School during the 2022-2023 school year was similarly inadequate. The Student’s Father testified that he hired his own father, a licensed TLC driver, to transport the Student to the Private School on days when his father was available, and he used Uber to either transport the Student to the Private School on days when his father was not available, or to bring the Student home. Additionally, the Student’s Father testified that he would pay his own father “much the same amount that we’d pay for an Uber”, “anywhere between like 70 to, you know, 90 or $100”. Without more, the Father’s testimony was insufficient to establish an obligation to pay a specific amount for private transportation services to transport the Student to and from the Private School during the 2022-2023 school year, for which an award of reimbursement would be appropriate.

There was also no documentation submitted by the Parents to demonstrate that they made any out-of-pocket payments for private transportation services used to transport the Student to and from the Private School during the 2022-2023 school year, other than snapshots of what purport to be 4 Uber receipts, one of which appears to relate to the prior school year, and the other 3 of which are of dubious origin, questionable pertinence, and are insufficient to support a reimbursement award.

Accordingly, there is insufficient evidence in the hearing record to support the Parents’ request that they be reimbursed for out-of-pocket expenses they incurred to transport the Student to and from the Private School during the 2022-2023 school year.

B. Tutoring Services

The Parents have also requested reimbursement for the out-of-pocket expenses they incurred for tutoring services provided to the Student on days when he was unable to attend school due to the DOE’s failure to provide him with appropriate transportation services.

The relief requested by the Parents is equitable in nature, as they are asking the IHO for an appropriate compensatory education award to address the DOE’s failure to provide the Student with required transportation services during the 2022-2023 school year, resulting in a denial of FAPE.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously noted, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted).

Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518), and it “must be designed to provide a student with the educational benefits that [he] would have received had the school district provided appropriate special education services in the first place” (J.N. ex rel. M.N. v. Jefferson County Bd. of Educ., 12 F.4th 1355, 1367 [11th Cir. 2021]).

An award of compensatory education in the form of private academic tutoring services is an appropriate remedy under the IDEA. See Independent Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1085 (8th Cir. 2020) [holding that the services of a private tutor was an appropriate compensatory award]; Reyes v. Bd. of Educ. for Prince County Pub. Sch., 2022 WL 971082, at *17 (D. Md. 2022) [determining that compensatory education in the form of tutoring was an appropriate remedy]; D.F. ex rel. A.C. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 499 (3rd Cir. 2012) [noting that compensatory education can take many forms, including tutoring].

Compensatory education awards may also include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. See Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir.

2015) [holding that the IDEA authorizes reimbursement for the cost of private special education services to compensate for a school district’s failure to provide the student with a FAPE, and citing cases]; E.L. and D.P. ex rel. J.P. v. Bedford Central Sch. Dist., 2022 WL 3667189, at *14 (S.D.N.Y. 2022) [holding that reimbursement for private tutoring services is available under the IDEA, provided the school district denied the student a FAPE and the private tutoring services are appropriate].

The hearing record indicates that the DOE failed to provide the Student with bus transportation services to and from the Private School on a consistent basis during the 2022-2023 school year. Additionally, the hearing record indicates that due to the DOE’s inconsistent bus transportation service, there were days during the 2022-2023 school year on which the Student either arrived at the Private School late, or was unable to attend the Private School at all, and that the Parents arranged for private tutoring services to be provided to the Student so that he would be able to keep up with his schoolwork.

However, the hearing record is devoid of credible evidence sufficient to demonstrate that the tutoring services that were provided to the Student, and for which reimbursement is being sought, were an appropriate alternative to academic instruction the Student is alleged to have missed.

According to a document which the Parents identified as a Tutoring Program Receipt, the Student received tutoring services 3 times a week for 1 hour each from REDACTED between October 10, 2022, and May 31, 2023. The unsigned document further indicates that the Parents were very consistent with bringing him for tutoring services because “he was very delayed in his academic studies”. The Tutoring Program Receipt therefore suggests that the tutoring services were provided to the Student, not to make up for missed academic instruction at school on an as needed basis, but to provide additional academic tutoring for the Student on a regularly scheduled basis throughout the 2022-2023 school year to address his overall academic delays.

The testimony from the Student’s Father supports this conclusion, as he indicated that the tutoring sessions were intended to help the Student with some of his schoolwork because he and his wife were both working; that they would bring to the tutoring sessions work the Student was not able to complete at school to allow him to finish it; and that the tutoring sessions were intended to keep the Student on par with the subjects and the curriculum he was learning at school.

Moreover, the hearing record fails to include any documentary or testimonial evidence which describes or explains in any detail the specific academic services that were provided to the Student in his tutoring sessions, how they were designed to address the Student’s educational needs, or the qualifications of the individual or individuals who provided the tutoring services, in order to enable the IHO to determine whether they were an appropriate alternative to the academic instruction he is alleged to have missed. See L.K. v. Northeast Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013) [rejecting the parents’ argument that the private services met the student’s needs, as “no evidence was presented to establish [the provider’s] qualifications, the focus of her therapy, or the type of services provided”, and further, because “the [provider] did not testify at the hearing and no records were introduced as to the nature of her services or how those services related to [the student’s] unique needs”]; R.S. and S.S. o/b/o A.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 (S.D.N.Y. 2011), aff’d 471 F. App’x 77 (2d Cir. 2012) [noting that the parents had failed to offer any evidence regarding the type and quality of the services the student had allegedly received privately, and that consequently, they had failed to demonstrate that the privately obtained services had remediated the student’s unique needs].

Accordingly, there is insufficient evidence in the hearing record to support the Parents’ request that they be reimbursed for the out-of-pocket expenses they incurred for private tutoring services provided to the Student during the 2022-2023 school year.

ORDER

IT IS HEREBY, ORDERED, that the DOE shall fund the cost of the tuition obligation incurred by the Parents for the Student’s enrollment at the Private School for the 2022-2023 school year, in an amount not to exceed $104,300, to be paid to the Private School within thirty (30) days of the DOE’s receipt of an affidavit from the Private School certifying to the Student’s attendance for the school year and setting forth the amount due.

The Parents’ request for reimbursement for out-of-pocket transportation expenses they incurred to transport the Student to and from the Private School during the 2022-2023 school year, and for out-of-pocket tutoring expenses they incurred for private tutoring services provided to the Student during the 2022-2023 school year, is DENIED for the reasons set forth herein.

Dated: November 30, 2023 Richard A. Liese

RICHARD A. LIESE

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DOE EXHIBITS

18. 1 - 17 Withdrawn [REDACTED] Physician Review Form for Transportation, 10/13/22, 2 pp. DOE

19. Physician Report, 10/06/22 (1 page; DOE)

p. DOE

20. Neuropsychological Evaluation, 10/19/22, 16 pp.

21. Authorization for Release of Health Information, 09/20/22, 1 p. DOE

22. Doctor Report, 08/30/22 (1 page; DOE)

p. DOE

23. Teacher Report, 06/27/22, 2 pp.

24. Neuropsychological Assessment, 06/01/22, 7 pp. DOE

25. Prior Written Notice, 05/19/22, 3 pp. DOE

26. Prior Written Notice, 11/23/2, 8 pp. DOE

27. IEP, 11/23/21, 29 pp. DOE

28. Progress Report, 11/19/21, 5 pp.

29. Classroom Observation, 11/18/21, 1 p.

30. Occupational and Physical Therapy Clinical Guide, 11/16/21, 1 p. DOE

31. Prior Written Notice, 10/12/21, 4 pp. DOE

PARENT EXHIBITS

A. Impartial Hearing Request, 06/26/23/23, 5 pp.

B. Speech Therapy Report and Goals, November 2022, 2 pp.

C. Executive Function Report and Goals, November 2022, 1 p.

D. Social Skills Report and Goals, November 2022, 3 pp.

E. Occupational Therapy Report and Goals, November 2022, 2 pp.

F. Counseling Report and Goals, November 2022, 2 pp.

G. Teacher Reading Report, November 2022, 2 pp.

H. Teacher Writing Report, November 2022, 2 pp.

I. Teacher Math Report, November 2022, 2 pp.

J. Behavior/Social Report and Goals, November 2022, 2 pp.

K. Attendance Record, 06/21/23, 1 p.

L. Tuition Contract, 09/01/22, 1 p.

M. Contract for Behavior Specialist, 12/01/22, 1 p.

O. 10 Day Notice, 08/22/22, 2 pp.

P. Tutoring Program Receipt, 10/10/23, 1 p. Q. Uber Receipts, Various Dates, 2 pp.

R. Class Schedule, 2022-2023, 1 p.

IHO EXHIBITS

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] Although the DPC refers to the services as “home instruction services”, the hearing record indicates that the services were tutoring services provided to the Student outside his home.

[2] The November 2021 PWN also indicates that a Social History Update dated October 21, 2021, was relied on by the CSE review team, but there is no mention of it in the IEP, and it was not placed in evidence. Additionally, the IEP reported the results of assessments of the Student’s reading and math skills, but none of the assessments were placed in evidence by the DOE.

[3] According to the Head of School, only the 40 minutes devoted to REDACTED on Monday, Tuesday, and Thursday, were religious in nature. Although the Student’s schedule included 20 minutes of Prayer 4 days a week, the Head of School credibly testified that the Student was pulled out for counseling services during those periods and did not participate in prayer. Based on the IHO’s calculations, the religious portion of the Student’s schedule thus amounted to 6% of the Student’s weekly instructional time at the Private School.