New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 608562- NYC: 255703

FINDINGS OF FACT AND DECISION

Case Number: 255703

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 09/07/2023

Date(s) of Hearing: 11/14/2023, 11/16/2023

Actual Record Closed Date: 12/19/2023

Date of Decision: 12/20/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was 11 years of age at the start of the 2023/24 school year, attending the Private School. (Ex. A, at 1). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free Appropriate Public Education [hereinafter, “FAPE”] for the 2023/2024 school year, and, in addition, failed to provide certain evaluations to the Student. (Ex. A, at 2).

The Parent requests tuition reimbursement for the 2023/24 school year for Student’s private program not approved by the Commissioner of Education for the education of students with disabilities as well as certain evaluations at public expense. (Id, at 2).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2023/24 school year. Additionally, the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs and the equities support the Parent’s requested relief. Furthermore, I find that the Student is entitled to the evaluations she seeks.

PROCEDURAL HISTORY

The Parent filed this case on 9/07/2023. (Ex. A). I was appointed to hear this case on 9/12/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 10/16/2023. (See generally PHC Tr.). A hearing was held over two days on 11/14/2023 and 11/16/2023. (See generally, Hearing Tr.). The Parent and the District were represented by counsel (Id.).

At the hearing, the District introduced no exhibits, called no witnesses, did not contest the allegation that the District had denied the Student a FAPE, but did make an opening statement and crossed two of the Parent’s witnesses. (See Hearing Tr., at 33-34, 47-54, and 69-77). In its closing brief, the District effectively conceded prong #1 of the Burlington/Carter test, but contested that the Parent’s unilateral placement was appropriate for the Student and that the equities balanced in the Parent’s favor. (See IHO Ex. I).

The Parents argued that the District denied the Student a FAPE, that the Parent’s unilateral placement was appropriate for the Student, and that the equities supported an award of tuition. (See generally, Hearing Tr.). The Parents introduced exhibits A–V into evidence.^[1] (Id., at 25-31). The Parent’s attorney delivered an opening statement. (Id., at 34-43). The Parent called three witnesses: the Student’s Parent, the Middle School Language Arts Coordinator, and the Clinical Psychologist that conducted the Student’s neuropsychological evaluation (all by affidavit). (Exs. T, U, V). The Parent’s attorney filed a closing brief. (IHO Ex. II).

FINDINGS OF FACT

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

At the start of the 2023/24 school year, the Student was REDACTED-year-old student who attended the Private School. (Ex. A, at 1). The 2023/24 school year was the Student’s REDACTED year in the Private School. (Ex. V, at ¶ 4). The student suffers from “severe dyslexia and dysgraphia, as well as severe deficits in language processing, auditory processing, phonological processing, attention deficits, executive functioning deficits, and severe academic deficits.” (Ex. T, at ¶ 10). Clinically, the Student is diagnosed with “[s]pecific learning disorders with severe weakness in reading, written expression, and mathematics, severe attention deficit/hyperactivity disorder (ADHD), combined type, and a language disorder across spoken and written modalities.” (Id.). The Student “has a significant language disorder that affects her learning and…requires a very specialized educational setting, program, and methodology.” (Id.).

In late 2021 and early 2022, the Student underwent a neuropsychological evaluation, the final report for which was delivered in April of 2022. (Ex. T, at ¶ 9). The clinical psychologist performed 14 separate assessments in addition to reviewing the Student’s educational records, observing the Student at the Private School, and interviewing the Student’s teacher. (Ex. F, at 10). The Student’s overall intellectual ability was rated as average, while her performance on the assessments rated from extremely low to average. (Ex. F, at 11-19). The Student was noted to have severe weaknesses in reading, written expression, and mathematics, in addition to her diagnosis indicated above. (Ex. F, at 32). The Clinical Psychologist recommended the following: a small class, either 6:1:1 or 8:1:1 in a homogenous group; a change in her educational classification to learning disability; a central auditory processing evaluation, given that the Student’s weakest areas were “phonological processing and the speed at which she can connect the visual representation with the phonological” and that, combined with the Student’s “slow progress in acquiring reading skills despite average intelligence” and “weak oral reading fluency,” suggested an auditory processing disorder, a speech and language evaluation, since “[a]uditory discrimination issues could be addressed by a speech and language pathologist in individual sessions,” and, finally, an updated occupational therapy evaluation and an assistive technology evaluation, given the Student’s delays in writing. (Ex. F, at 31-35).

On 3/23/2023, the District convened an IEP meeting and recommended a 12:1 class for the Student, along with 1:1 counseling once per week for 30 minutes per session, group occupational therapy once per week for 30 minutes per session and 1:1 occupational therapy once per week for 30 minutes per session, as well as group speech-language therapy twice per week for 30 minutes per session. (Ex. J, at 1; Ex. A, at 11). The Student’s Parent vehemently disagreed with this recommendation and informed the District of this in a letter dated 4/18/2023. (Ex. J). On 4/19/2023, the Parent signed a consent form for additional evaluations, though none of the evaluations were ever conducted. (Ex. H). On 8/21/2023, the Parent provided notice that, absent an appropriate placement for the 2023/24 school year, the Parent would privately place the Student. (Ex. B).

The Private School is a “specialized learning environment for children with language-based learning disabilities in REDACTED grade.” (Ex. U, at ¶ 8). The Student’s ELA teacher has a Master’s degree in speech-language pathology, is a licensed speech-language pathologist, and “is certified in New York State as a teacher of students with speech and language disabilities (‘TSSLD’).” (Ex. U, at ¶ 20). One of the Student’s math teachers has two Master’s degrees (childhood education and teaching students with disabilities), while the other is working towards her Master’s. (Ex. U, at ¶ 21). Both of the Student’s history teachers have their Master’s degrees (childhood education and special education, and speech-language pathology). (Ex. U, at ¶ 22). The Student’s Judaic studies teacher has his Master’s degree. (Id.). Her science teacher is pursuing his Master’s degree, and her Hebrew teacher has her Master’s degree in Jewish Education. (Id.).

The Student’s ELA class is a 5:1 classroom, her math class is an 8:2 classroom, her History class is a 10:2 classroom, her Judaic Studies class is a 6:1 classroom, her Science class is a 10:1 classroom, her Hebrew class is a 6:1 classroom, and her advisory class is a 9:2 classroom. The students at the Private School all “have learning disorders including dyslexia, language disorders, executive functioning deficits, and attention deficit hyperactivity disorder.” (Ex. U, at ¶ 8).

The Student “continues to benefit from targeted PAF instruction.” (Ex. U, at ¶ 24). In reading, the student benefits from “daily work within her reading classes, but also her other classes, which allows her to work on a variety of reading material from fiction to nonfiction, from concrete to more inferential material,” in writing, from “assistance with developing an outline, and developing an appropriately structured paragraph or essay when writing about content,” in math, from “visual cues to help her move through the sequence of a math problem” and from a “multisensory approach which focuses on breaking down the language and concepts in math using manipulatives to move from very concrete to more abstract and algorithmic approaches to math,” in history and Judaic studies, from the “opportunity to work on projects as a group, [listening] to others viewpoints, and [organizing] and [completing] assignments,” in science, from implementing slightly different organizational methods than she uses in other classes but with more hands-on work, and in a general sense, from “pragmatic and socio-emotional support, executive functioning, and very sequential and deliberate instruction.” (Ex. U, at ¶¶ 26-32).

The Middle School Language Arts Coordinator at the Private School testified that the Private School is “very pleased with the progress” that the Student has been making, and that, though the Student’s “learning is slow,” the Student has nevertheless made “steady and successful” progress. (Ex. U, at ¶ 37). The Parent testified that the Student “has been making progress and is engaged in school and her instruction.” (Ex. V, at ¶ 18).

The tuition at the Private School for the 2023/24 school year is $74,500. (Ex V, at ¶ 19; Ex. M). While the Parent testified that she was “requesting direct payment for the…tuition, as the full costs of [the Private School] would be a hardship for me and my partner” (Ex. V, at ¶ 19), the combined incomes of the Parent and her partner (adding the Parent’s adjusted gross income from her 2022 tax returns and the partner’s W-2 from that same year) is $REDACTED. (Exs. Q, R).

CONCLUSIONS OF LAW AND ANALYSIS

When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. (Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 [2d Cir. 2014] (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 [2d Cir. 2014]). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” (20 U.S.C. § 1415[b][6][A]).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. (See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 [1993]).

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – 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. (NY Educ. Law § 4404[1][c]).

A. Prong I

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed 1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and 2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). A free and appropriate public education can be said to be offered to a student when (a) the board of education 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. (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137

S. Ct. 988, 999 [2017]).

Although school districts must comply with the checklist of procedures for developing a student's IEP, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F.3d at 190-91), the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA. (M.H., 685 F.3d at 245; A.C.

v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck

Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

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), but the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). Indeed, “[t]he 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), and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see also Grim, 346 F.3d at 379). School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132) but are required to provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).

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 Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment (hereinafter, “LRE”). (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; and Walczak, 142 F.3d at 132.). An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F., 137 S. Ct. at 1000).

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "”bricks and mortar” location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR § 300.320). When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420). Moreover, parents generally do not have a procedural right in the specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

Although not explicitly stated in federal or State regulation, however, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

Finally, A FAPE must provide “related services” tailored to meet the unique needs of a particular child. (20 U.S.C. § 1401[9]). Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 [1982]); Walczak, 142 F.3d at 122. “[R]elated services” include “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education.” (20 U.S.C. § 1401[26][A]; see Rowley, 458 U.S. at 188; see also P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 741 [2d Cir. 2018]).

The Parent alleged that the District committed a number of procedural and substantive violations in this matter. Here, however, the District did not contest, and in its closing brief, effectively conceded that it had failed to provide the Student with a FAPE. (See Hearing Tr., at 27; IHO Ex. I). Accordingly, I find that the District failed to meet its burden of proof as to Prong I of the Burlington/Carter standard.

B. Prong II

A private school placement must be “proper under the Act.” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370). This means that the Private School must offer an educational program that meets the student’s special education needs. (See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” (Gagliardo, 489 F.3d at 112). Additionally, “[s]ubject to certain limited exceptions, ‘the same considerations and criteria 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.’”(Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]).

Parents need not show that the placement provides every special service necessary to maximize the student’s potential. (Frank G., 459 F.3d at 364-65). Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 C.F.R. § 300.39[a][1]; 8 NYCRR § 200.1[ww]; Hardison, 773 F.3d 386).

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 benefits. Still, 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. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364; and see Gagliardo, 489 F.3d at 115).

In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School provides the Student with small class sizes, which he needs and benefits from. Second, the Private School provides trained teachers who can support the Student. Third, the Private School individualizes its instruction for the Student by providing copious adaptations that the Student needs. Finally, the Student is making progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because of its smaller class sizes. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 [6th Cir. 2001]). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” (Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401[29]). The Student’s ELA class is a 5:1 classroom, her math class is an 8:2 classroom, her History class is a 10:2 classroom, her Judaic Studies class is a 6:1 classroom, her Science class is a 10:1 classroom, her Hebrew class is a 6:1 classroom, and her advisory class is a 9:2 classroom. (Ex. U, at ¶¶ 26-32). The students at the Private School all “have learning disorders including dyslexia, language disorders, executive functioning deficits, and attention deficit hyperactivity disorder.” (Ex. U, at ¶ 8). Therefore, I find that this factor tends to establish the appropriateness of the private school placement.

Second, the Private School is appropriate because it provides trained teachers to support the Student. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. (Frank G., 459 F.3d at 364). The Student’s ELA teacher has a Master’s degree in speech-language pathology, is a licensed speech-language pathologist, and “is certified in New York State as a teacher of students with speech and language disabilities (‘TSSLD’).” (Ex. U, at ¶ 20). One of the Student’s math teachers has two Master’s degrees (childhood education and teaching students with disabilities), while the other is working towards her Master’s. (Ex. U, at ¶ 21). Both of the Student’s history teachers have their Master’s degrees (childhood education and special education, and speech-language pathology). (Ex. U, at ¶ 22). The Student’s Judaic studies teacher has his Master’s degree. (Id.). Her science teacher is pursuing his Master’s degree, and her Hebrew teacher has her Master’s degree in Jewish Education. (Id.). Accordingly, I find that the teachers have sufficient training to teach the Student based on her needs.

Third, the Private School is appropriate because it individualizes its instruction for the Student by providing copious adaptations that the Student needs. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365-66). The Student “continues to benefit from targeted PAF instruction.” (Ex. U, at ¶ 24). In reading, the student benefits from “daily work within her reading classes, but also her other classes, which allows her to work on a variety of reading material from fiction to nonfiction, from concrete to more inferential material,” in writing, from “assistance with developing an outline, and developing an appropriately structured paragraph or essay when writing about content,” in math, from “visual cues to help her move through the sequence of a math problem” and from a “multisensory approach which focuses on breaking down the language and concepts in math using manipulatives to move from very concrete to more abstract and algorithmic approaches to math,” in history and Judaic studies, from the “opportunity to work on projects as a group, [listening] to others viewpoints, and [organizing] and [completing] assignments,” in science, from implementing slightly different organizational methods than she uses in other classes but with more hands-on work, and in a general sense, from “pragmatic and socio-emotional support, executive functioning, and very sequential and deliberate instruction.” (Ex. U, at ¶¶ 26-32). Because these aspects of the program are tailored to the student’s individual educational needs, I accordingly find that this factor also weighs in favor of the placement’s appropriateness.

Finally, the Private School is appropriate because the Student is making progress. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. (Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 [S.D.N.Y. 2011]). The Middle School Language Arts Coordinator at the Private School testified that the Private School is “very pleased with the progress” that the Student has been making, and that, though the Student’s “learning is slow,” the Student has nevertheless made “steady and successful” progress. (Ex. U, at ¶ 37). The Parent testified that the Student “has been making progress and is engaged in school and her instruction.” (Ex. V, at ¶ 18). Accordingly, the Student’s uncontroverted progress suggests that the Private School is appropriate to meet the Student’s needs.

I hold that the weight of the evidence establishes that the Private School addressed Student’s individual special education needs, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364). As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard.

C. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. (Gagliardo, 489 F.3d at 112). “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” (Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 [S.D.N.Y. Nov. 20, 2007]). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. (See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 [S.D.N.Y. 2011]).

In this case, the Parent cooperated with the District and is entitled to full reimbursement. First, the Parent participated in the IEP meeting dated 3/23/2023 (Ex. J, at 1; M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 [2d Cir. 2012] [holding that when a parent attends the IEP meeting, this is one fact among others that weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test]). Additionally, on 8/21/2023, the Parent provided the necessary ten days notice of her concerns with the District’s offer of FAPE for the Student for the 2023/24 school year and her intent to unilaterally place the Student in the Private School absent a satisfactory placement. (34 C.F.R. § 300.148[d][1][ii]; Ex. B).

By way of relief, the Parent seeks direct tuition funding at the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. (See, e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). While the Parent testified that she was “requesting direct payment for the…tuition, as the full costs of [the Private School] would be a hardship for me and my partner” (Ex. V, at ¶ 19), the combined incomes of the Parent and her partner (adding the Parent’s adjusted gross income from her 2022 tax returns and the partner’s W-2 from that same year) is $392,308.95. (Exs. Q, R). Despite the Parent’s obvious disingenuousness on this point, I can see no reason to penalize the Student for what is, on this record, an appropriate private placement. Further, Ferreira v. New York City Dep't of Educ., 2023 WL 2499261, at *10 [S.D.N.Y. Mar. 14, 2023] stands, in a general sense, for the proposition that evidence of hardship is simply not required for direct funding of tuition. Accordingly, I find that direct funding of tuition to the Private School is appropriate for the balance of the tuition not already paid by the Parent, as well as reimbursement to the Parent for tuition payments already made.

I find no issue with the reasonableness of the tuition amount. “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” (Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 [1993]; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 [S.D.N.Y. 2011] [stating that “this Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”]). The tuition at the Private School for the 2023/24 school year is $74,500. (Ex V, at ¶ 19; Ex. M). I hold that this tuition is reasonable in light of the small class sizes, the highly trained teachers, the highly specialized nature of the program, and the sheer number of separate services the Student requires to make educational progress. (See generally, Exs. N, C-E, G, T-V).

Finally, I decline to make an equitable reduction in the tuition award for the presence of nonsecular material in the school curricula. In their closing brief, the Parent has argued at length – and persuasively – at the impropriety of deductions for non-secular education where, as here, the Parent has unilaterally placed the Student following the failure of the District to provide a FAPE. This stance has also been explicitly endorsed by the SRO. In Application of a Student with a Disability, Appeal No. 23-133, after analyzing the line of cases in order to determine whether tuition reimbursement for religious instruction violated the establishment clause of the constitution, the SRO wrote:

“I find that under the particular facts of this case as supported by the hearing record the reimbursement to the parents for their expenditures for the student's tuition at SINAI School is not precluded by the Establishment Clause of the First Amendment according to the most applicable case law, statutes and regulations addressing the issue in the context of the availability of federal funding for religious private schools generally and the IDEA in particular. The IDEA has the secular purpose of ensuring that all children with disabilities are offered a free appropriate public education. In its Burlington and Carter decisions, the Supreme Court provided the remedy of tuition reimbursement to the parents of children who were entitled to receive a FAPE but did not receive it. The remedy is available to all parents who otherwise meet the criteria set forth in those decisions, regardless of whether the expenses which they incur arise from placement of their children in other public schools or in private schools. Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have been compelled to make had the boards of education in question offered their children appropriate educational placements in the first instance, upon a showing by the parents that the selected unilateral placement provides specialized instruction appropriate to meet their child's unique special education needs.” (Application of a Student with a Disability, Appeal No. 23-133).

The SRO reversed the IHO’s equitable reduction of the Parent’s tuition reimbursement on the grounds that such a reduction was “unsupported” by the legal principles the SRO had identified. I agree with this finding and adopt the SRO’s reasoning. Accordingly, I decline to reduce the tuition award for the presence of religious instruction in the curricula of the Private School.

After considering the record at the hearing, I find that the equities support the Parent’s claim for the cost of tuition, without any reduction for any equitable purpose, and order the District to fully reimburse the Student’s tuition for the 2023/24 school year.

D. Request for IEEs

The Student requests, in their DPC, and according to the recommendations of the Clinical Psychologist in April of 2022, a central auditory processing evaluation, a speech-language evaluation, an updated occupational therapy evaluation, and an assistive technology evaluation (Ex. F, at 31-35). For the reasons that follow, and while I decline to find that, as a matter of law, the Student is entitled to any of these additional evaluations or assessments, I nevertheless exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with all of the requested assessments.

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. (8 NYCRR § 200.5[g][1]). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either 1) ensure that an IEE is provided at public expense; or 2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv] [emphasis added]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. (See 34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see also A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that “[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).

While, in the instant matter, Parent is not entitled to any IEE according to the above provisions, not least because the prime issue here is that there are no evaluations with which the Parent has ever explicitly disagreed within the meaning of the above provisions (Ex. A), I find, as described below, that the record supports the provision of the above evaluations pursuant to my discretionary authority.

a. Central Auditory Processing Evaluation and Speech-Language Evaluation

As to the central auditory processing evaluation and the speech-language evaluation, the record states that the Student’s weakest areas were “phonological processing and the speed at which she can connect the visual representation with the phonological” and that, combined with the Student’s “slow progress in acquiring reading skills despite average intelligence” and “weak oral reading fluency,” which, to the Clinical Psychologist, suggested an auditory processing disorder. (Ex. F, at 31-35). In response to this, the Clinical Psychologist recommended both a central auditory processing evaluation and a speech-language evaluation, as the former would help get to the root of a potential diagnosis for the Student, and the latter would help to determine whether the disorder, if it existed, could be at all ameliorated through the provision of individual speech-language therapy.

Accordingly, and as the District placed no evidence in the record why these evaluations were unnecessary, I exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with a central auditory processing evaluation and a speech language evaluation.

b. Occupational Therapy Evaluation and Assistive Technology Evaluation

As to the occupational therapy evaluation and the assistive technology evaluation, the record states that, in general, the Student suffers from delays in writing. (Ex. F). Specifically, the neuropsychological evaluation notes that “[t]he degree of concentration and labor which is required for [the Student] to write legibly, reduces the quality and quantity of her written piece and detracts from her ability to plan and produce quality content that reflects her true understanding. There is a combined problem involving motor execution of writing, the organization of ideas and the application of the mechanics of grammar and spelling.” (Ex. F, at 28).

Accordingly, and given the above, I find that an occupational therapy and assistive technology evaluations are warranted. I thus exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with these evaluations.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. Within 35 days of the date of this Order, the District shall fund the balance of the Student’s tuition to the Private School still outstanding for the 2023/24 school year, and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $74,500. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent or the Private School.

2. Within 35 days of the date of this Order, the Office of Student Transport (OTP) shall contact the Parents to arrange and implement appropriate transportation for the Student to and from the Private School for the 2023/24 school year. Upon a showing of receipts, statements, or other similar documentation, the District shall reimburse the Parent for any transportation costs already incurred for the 2023/24 school year.

3. A central auditory processing IEE shall be completed at a reasonable market rate with a provider of the Parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

4. A speech-language IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

5. An occupational therapy IEE shall be completed at a reasonable market rate with a provider of the Parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

6. An assistive technology IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

7. After the IEEs are completed, the CSE shall reconvene within 30 days and consider the findings of these IEEs in crafting goals and recommendations for the Student. Additionally, the CSE shall consider, on the basis of these and all other evaluations, whether the Student’s disability classification should be changed to “Learning Disability”.

SO ORDERED.

DATED: 12/20/2023

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

Term Used In FOFD Redacted Information

Student REDACTED

Parent/Guardian REDACTED

Parent Attorney/Representative REDACTED

District Attorney/Representative REDACTED

Private School REDACTED

District REDACTED

Middle School Language Arts REDACTED

Coordinator

Clinical Psychologist REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Demand for Due Process Hearing 9/6/2023 (14 pages)

B. Ten Day Notice/Evaluation Request/Confirmation 8/21/2023 (6 pages)

C. REDACTED Progress Report June 2023 Undated (23 pages)

D. REDACTED Progress Report January 2023 Undated (24 pages)

E. REDACTED Progress Report June 2022 Undated (30 pages)

F. Neuropsychological Evaluation 4/3/2022 (43 pages)

G. REDACTED Progress Report January 2022 Undated (26 pages)

H. Consent for Additional Evaluation 4/30/2023 (1 page)

I. Confirmation District Received Letter from Parent 4/19/2023 (1 page)

J. Letter from Parent Disagreeing with Program/Requesting Evaluations and Reconvene of CSE 4/18/2023 (4 pages)

K. REDACTED Academic Program Description Undated (4 pages)

L. Class Schedule 2023-2024 Undated (1 page)

M. REDACTED Enrollment Contract and Addendum Multidate (5 pages)

N. Affidavit of Finance 10/30/2023 (1 page)

O. Parental Payment Multidates (6 pages)

P. Attendance Record 9/30/2023 (1 page)

Q. 1040 Income Tax Return 2022 REDACTED Undated (2 pages)

R. 2022 W-2 of REDACTED Undated (1 page)

S. Curriculum Vitae of REDACTED Undated (2 pages)

T. Affidavit of REDACTED 10/30/2023 (5 pages)

U. Affidavit of REDACTED 11/9/2023 (10 pages)

V. Affidavit of REDACTED 11/7/2023 (4 pages)

DOE EXHIBITS

1. N/A N/A (N/A pages)

IHO EXHIBITS

I. District’s Closing Brief 12/4/2023 (6 pages)

II. Parent’s Closing Brief 12/4/2023 (12 pages)

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.