STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-034
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Offices of Lauren A. Baum, PC, attorneys for petitioner, by Matthew Finizio, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied in part his request for funding of his daughter's tuition at the Hamaspik School (Hamaspik) for the 2022-23 school year. Respondent (the district) cross-appeals from that portion of the IHO's decision which found that the parent satisfied his burden of showing the appropriateness of the student's unilateral placement. The appeal must be sustained. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
According to the parent, the student has received a diagnosis of Down Syndrome and began receiving early intervention and preschool services including physical therapy (PT), speech-language therapy, feeding therapy, and occupational therapy (OT) as a young child (Parent Ex. P ¶¶ 1-3). The student began attending Hamaspik at the start of the 2021-2022 school year (id. ¶ 5).[1]
In a letter to the district dated August 19, 2022, the parent asserted that the district had not offered the student an appropriate classroom placement recommendation and thereby denied the student a FAPE for the 2022-2023 school year (Parent Ex. B).[2] The parent notified the district of his intent to unilaterally place the student at Hamaspik for the 2022-2023 school year and seek prospective tuition/tuition reimbursement for the student’s attendance at Hamaspik (id.).
On September 1, 2022, the parent signed a contract with Hamaspik School for the student’s attendance at the school for the 2022-2023 school year (see Parent Ex. N). The contract indicated that the tuition for Hamaspik for the 2022-2023 school year was $120,000 (id. at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated July 19, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year by failing to convene a CSE to develop an appropriate IEP (see Parent Ex. A). According to the parent, a CSE had not convened to engage in educational planning for the student since December 2, 2020 (id. at pp. 1-2). The parent stated that, despite being advised in writing by the parent's attorney of the need for a CSE meeting, the district took no action with respect to the student (id. at p. 2). Due to the district's failure to take action, the parent placed the student at Hamaspik for the 2022-23 school year (id.). As relief, the parent sought reimbursement and/or direct funding for the student's placement for the 2022-23 school year (id. at p. 3).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH); after prehearing and status conferences, a hearing date devoted to the merits took place on November 18, 2024 (see Aug. 28, 2024 Tr. pp. 1-9; Oct. 1, 2024 Tr. pp. 10-17; Nov. 1, 2024 Tr. pp. 1-9; Nov. 18, 2024 Tr. pp. 10-28). In a decision dated December 6, 2024, the IHO found that the district failed to offer the student a FAPE for the 2022-23 school year and that Hamaspik was an appropriate unilateral placement for the student (IHO Decision at pp. 8-10).
Turning to equitable considerations, the IHO found that it was not appropriate to require the district to fund the entirety of the student's tuition due a class on the student's schedule, entitled "Davening," which the IHO determined to consist of religious instruction (IHO Decision at pp. 12-13). Despite testimony during the impartial hearing that Davening was not religious in nature per se, but rather relied on religious texts to strengthen reading comprehension and vocabulary skills, the IHO determined that "special education instruction provided to a student during a period of prayer and/or cultural and religious instruction . . . to be merely accommodations for and incidental to the main purpose of the instruction, which is religious indoctrination" (id. at p. 13). Accordingly, the IHO reduced the district's responsibility to fund the student's entire tuition by the proportional amount of time the student spent in Davening class, which amounted to $3,600 (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in reducing an award of district funding for the student's unilateral placement due to what the IHO determined to be religious instruction. Specifically, the parent argues that the student's Davening class did not constitute religious instruction, or, alternatively, that recent United States Supreme Court precedent precludes the denial of funding for religious instruction. In either case, the parent seeks an order that the district fund the student's full programming at Hamaspik, including the Davening class.
The district cross-appeals, arguing that the IHO erred in concluding that the parent met his burden of establishing Hamaspik was an appropriate unilateral placement for the student. Specifically, the district contends that the lack of counseling services, a functional behavioral assessment (FBA), functional grouping of the student, and proper assessment of the student's areas of need all supported a finding that Hamaspik was not an appropriate unilateral placement for the student. The district argues that the student's emotional, intellectual, and behavioral needs were not properly taken into account by Hamaspik, and, therefore, the district should not be required to fund the student's placement.
Additionally, the district argues that, should the undersigned find that Hamaspik is an appropriate placement for the student, the IHO's equitable tuition reduction due to the Davening class was appropriate and should be sustained. The district asserts that, because the Davening class provided religious instruction not necessary for the provision of a FAPE, the district should not be required to fund that portion of the student's placement.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (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 generallyForest 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]).
A FAPE is 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 has indicated 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, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[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 Court has also 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 administrative officer 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).
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, 142 F.3d at 130; see 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., 580 U.S. at 404). The statute 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] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, 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). 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, 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., 580 U.S. at 403 [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). The student's recommended program must also be provided in the least restrictive environment (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 Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
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]).[3]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
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).
VI. Discussion
A. Unilateral Placement
At the outset, I note that the district does not cross-appeal from the IHO's determination that the district failed to offer the student a FAPE for the 2022-23 school year (see IHO Decision at pp. 8-9). Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21 2013]).
Turning to the district's cross-appeal regarding the appropriateness of the student's unilateral placement at Hamaspik, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). 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; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject 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., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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). 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 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
A brief discussion of the student's needs provides context for the issue to be resolved, namely, whether Hamaspik delivered specially designed instruction to the student to address her unique needs during the 2022-23 school year.
At the outset of this discussion, the district asserts on appeal that Hamaspik failed to properly evaluate the student in her areas of need, did not conduct an FBA to determine whether she needed a behavioral intervention plan, and did not submit into evidence those evaluations or assessments it used to determine the student's needs. However, contrary to the district's arguments, it was the district's obligation to identify the student's needs, not the parent's (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]). Nevertheless, there is ample evidence in the hearing record showing that Hamaspik determined the student's needs during the 2022-23 school year.
The Hamaspik principal testified that she was familiar with the student during the 2022-23 school year, and that the student struggled with impulsivity, short attention span, and rigidity (Parent Ex. Q ¶¶ 1, 17, 19). According to the principal, the student was easily distracted by auditory and visual stimuli in her environment, she was an auditory and tactile learner, and she responded well to hands-on activities and reminders during the school day (id. ¶ 19). The principal also testified that the student engaged in problem behavior when presented with tasks she had difficulty with and would become avoidant to the task, refuse to complete the task, exhibit escape behavior, and try to find something else to do (id.).
In reading, the February 2023 educational progress report stated the student labeled and identified all the letters in the alphabet and their corresponding sounds, and identified initial and final sounds of words, but needed support with identifying vowel sounds and identifying and labeling the ending sounds in words (Parent Ex. E at p. 1). The student decoded cvc, ccvc, ccvcc, and ccvcc words, but needed to practice encoding cvc and ccvcc words with short vowel sounds (id. at p. 2). The student was working on sight word identification, understanding various concepts of print, early literacy skills, listening comprehension skills, and the ability to identify words and phrases in books, follow along with a story being read, and respond to "wh" questions (id.). In writing, the student needed to learn how to write the lowercase letters of the alphabet (id.).
Turning to math, the February 2023 educational progress report stated that the student identified quantitative concepts up to 10 using concrete materials, rote counted to 100 independently, counted with one-to-one correspondence up to 30, and identified and labeled numbers up to 100 (Parent Ex. E at p. 2). The student was working on recognizing number patterns and size relationships and creating number sentences, and making progress in her ability to give a specific number of items from a larger set of 20 and understand addition stories (id.). The student needed support when computing addition problems without concrete objects and her low motivation and lack of confidence impeded her task performance (id.).
The February 2023 speech-language progress report indicated the student spoke in sentences, answered "wh" questions appropriately, sequenced four picture cards, was understood by others, and enjoyed interacting with her peers (Parent Ex. F at p. 1). Other strengths included her desire to communicate, "great" memory skills, interest in a variety of topics, and her ability to understand and retell stories (id.). The student had challenges with inferencing, problem solving, following directions when she was not motivated to the task, conversational turn-taking and topic maintenance, expressing emotions and how to deal with her emotions, and at times presented with a stutter that affected her speech intelligibility (id.). In the area of pragmatic language skills, the student required reminders to refrain from taking control over games and allowing peers to make choices (id. at p. 2). Regarding the student's executive functioning skills, she had difficulty with impulse inhibition but learned not to grab what did not belong to her with reminders (id. at p. 3).
Socially, the February 2023 educational progress report stated that the student enjoyed interacting with her peers, sharing ideas, and engaging in parallel play (Parent Ex. E at p. 1). The student was easily distracted by visual and auditory stimuli, had a short attention span, was impulsive, copied peers' unexpected behaviors, and required adult support when experiencing strong emotions (Parent Exs. E at p. 3; Q ¶ 19). According to the report, the student was not able to identify emotions in pictures or others, had difficulty self-regulating when a challenge occurred, and displayed limited perspective taking skills (Parent Ex. E at p. 3). The student also demonstrated problem behavior during transitions, when denied access to preferred items, and when presented with perceived challenging tasks (Parent Exs. E at p. 3; Q ¶ 19). These behaviors included non-compliance, refusal to complete the task, property destruction, aggression, and ignoring teacher directions (Parent Ex. E at p. 3). The student's teacher hypothesized that rigidity and self-direction "play[ed] a role" in the student's problem behavior (id.).
In terms of physical development, the February 2023 OT progress report stated the student had difficulty with activities of daily living (ADLs), balance, coordination, core strength, endurance, executive functioning abilities, fine motor skills, graphomotor skills, gross motor skills, multi-tasking, oculomotor strength, overall muscle tone, postural control, reflex integration, self-regulation, sensory processing, visual attention and visual perceptual skills resulting in the need for OT services (Parent Ex. G at p. 1). In the area of PT, the February 2023 PT progress report indicated the student had overall muscle weakness which impacted her balance, coordination, motor planning, ball/eye-hand coordination, and jumping skills (Parent Ex. H at p. 1). The student walked up and down stairs with one hand holding the handrail using alternating steps to walk up and non-alternating steps to walk down (id.). Further, when given a few verbal prompts she navigated an obstacle course, imitated crossover activities, engaged in seven yoga poses unsupported for 10 seconds, and caught and threw a playground ball (id. at pp. 1-2).
2. Hamaspik—Specially Designed Instruction and Progress
Turning to the question of whether Hamaspik provided the student with specially designed instruction to meet her unique needs, a Hamaspik program description included in the hearing record described that the school "cater[ed]" to the unique needs of students with a diagnosis of Down Syndrome (Parent Ex. C at p. 1). The principal testified that Hamaspik enrolled students ages 5 to 13 years old, many whom were bilingual (English/Yiddish), and that each classroom typically contained six students, one teacher, and four paraprofessionals to assist during academic instruction (Parent Ex. Q ¶¶ 5, 7). According to the principal, two of the paraprofessionals were assigned to the class, and two other paraprofessionals went into the classroom "during academics to assist in 1:1 and small group instruction" (id. ¶ 7). The principal indicated that 1:1 behavioral paraprofessional services were provided depending on a student's specific needs, and that students were grouped in classrooms "with other children that function[ed] on similar academic and social levels and ha[d] similar language abilities" (id.).[4]
The Hamaspik program description indicated that the school's academic curriculum was a combination of group learning and small group instruction and that small learning groups contained a maximum of two students (Parent Exs. C at p. 3; Q ¶ 8). The program description stated that Hamaspik's English language arts (ELA) curriculum was aligned with the "New York State Next Generation learning standards" and included "systematic and explicit phonics instruction thorough research based multi-sensory approaches including the Orton Gillingham Approach" (Parent Ex. C at p. 3). For writing, Hamaspik used Handwriting Without Tears, which was described as a multisensory handwriting curriculum (id.). The Hamaspik math curriculum was described as aligned with the "Common Core standards," and used approaches such as natural environment, real-life teaching, and multisensory learning "to help students break down math concepts in . . . concrete, pictorial, and abstract concepts" (id.). In addition, Hamaspik used "The Social Thinking Program," which was described as a "language and research-based approach" to teach students to "generalize social skills in a systematic manner" (id.). Further, students were taught adaptive daily living skills in a variety of settings throughout the day to promote independence and increase skill level (id.).
Regarding related services, Hamaspik offered a "combination of conventional pull out and push in" individualized therapy sessions for OT, PT, and speech-language therapy, to address students' individual goals (Parent Ex. C at p. 4). To address behavior, Hamaspik used principles of applied behavior analysis (ABA) and behavior modification strategies, and conducted ongoing parent workshops and training for families and staff to "ensure that the skills taught in school [we]re generalized in other settings" (id.). To target behaviors, the school provided proactive strategies and reinforcement, a classroom-wide behavior system, and individualized behavior intervention plans, as needed (id.). Lastly, the Hamaspik program description indicated that to "ensure optimal communication" between home and school, the staff used daily communication notebooks, weekly newsletters, a weekly math and reading report (per student), monthly teacher/therapist phone calls with families, bi-monthly written therapy updates, monthly team meetings with interdisciplinary team, parent teacher conferences, and written progress reports, and relayed that the school maintained an "open door" policy for parental observation or visits (id. at pp. 4-5).
Review of the hearing record shows that during the 2022-23 school year, the student attended a classroom with 6:1+3 student-to-teacher ratio (Parent Ex. E at p. 1). The speech-language progress report indicated the student received speech-language therapy consisting of three 30-minute sessions per week in an individual setting, one 30-minute group session per week pushed in to the classroom to address feeding and conversation skills, one 30-minute classroom skill-based lesson per week to address executive function and language needs pushed in to the classroom, and four 15-minute sessions per week in the classroom "moderated by a variety of trained staff" focused on oral motor skills (Parent Ex. F at p.1). The OT progress report indicated the student received individual OT; however, the frequency of this service was not indicated in the hearing record (see Parent Exs. D; G at p. 1; L at p. 1; Q ¶ 20). Additionally, the student also received a weekly OT graphomotor group, a weekly fine motor group, a biweekly ADL group, a daily trampoline group, a daily core-oral motor-breathing group, and a daily group walk (Parent Ex. G at p. 1). Lastly, the student received two 30-minute sessions per week of individual PT (Parent Ex. H at p. 1).
Turning to the district's assertions on appeal, the district argues that "the [p]arent failed to show that the school properly functionally grouped the [s]tudent" with other students who were at her intellectual level.[5] First, the district fails to cite any authority that a parent is required to comply with the State's functional grouping requirements and, on the contrary, parental placements generally "need not meet state education standards or requirements" to be considered appropriate to address the student's needs (Frank G., 459 F.3d at 364; see Carter, 510 U.S. at 13-14; see also Application of Bd. of Educ., Appeal No. 18-117 [declining to hold that parent's unilateral placement is required to comply with State standards for functional grouping of students with disabilities]; Application of a Student with a Disability, Appeal No. 16-006 [same]; Application of a Student with a Disability, Appeal No. 13-159 [same]; Application of the Dep't of Educ., Appeal No. 12-135 [same]; Application of the Dep't of Educ., 12-134 [same]). Second, the district's argument is not borne out by the evidence even assuming that the unilateral placement was required to comply with such functional grouping requirements. The school principal from Hamaspik testified that students were placed in classrooms with other children who functioned on similar academic, social, and language levels (Parent Ex. Q ¶ 7). I note that the district declined to cross-examine the school principal, therefore, the basis for the district's contention regarding the student's classroom grouping on appeal is unclear (Tr. p. 20). Further, the school principal also testified that multisensory teaching was used to accommodate differing strengths and "ensure that [Hamaspik] cater[ed] to all types of learners" (Parent Ex. Q ¶¶ 7, 8). Academic instruction included a combination of group and small group instruction with a maximum of two students in small learning groups, with engagement and reinforcement strategies included in all lessons to achieve a higher interest, cooperation, and participation of students (Parent Ex. Q ¶ 8). Thus, the district's arguments regarding functional grouping at Hamaspik are without merit.
Next, the district asserts that the parent failed to show that Hamaspik "provided the [s]tudent with a schedule that included a sufficient component of academics." The student's daily schedule reflected 45 minutes of reading groups, 30 minutes of math groups, 30 minutes of thematic units (social skills/social thinking), 15 minutes of handwriting, and circle time for "news" and "goodbye" (Parent Ex. D). Additionally, the schedule showed 20 minutes of structured play, 10 minutes of "Davening," which included "[r]ead aloud" focusing on vocabulary, comprehension, and fluency, 15 minutes of sensory motor group, 25 minutes of "[m]iddos"/life skills, 20 minutes of skill-based group (social group, ADL, PT, group therapy, etc.), and 15 minutes of oral motor (id.).
The school principal stated the student had difficulty with impulsivity, had a short attention span, was easily distracted by auditory and visual stimuli, and showed avoidant behavior, refusal, and escape behavior when given a difficult task (Parent Ex. Q ¶ 19). To address those needs in the classroom the teacher used multisensory learning activities as well as reinforcement schedules for each lesson (Parent Ex. E at p. 1). The student was learning to follow a visual schedule and engage in classroom activities for an extended duration of time, and had improved her ability to follow the classroom schedule independently (id.). Verbal praise, engagement strategies, sensory breaks, concrete materials in math, and reinforcement schedules were necessary to have the student to complete tasks (id.).
Additionally, the school principal testified that memory aides, multisensory techniques, picture cues, flashcards, interactive worksheets, songs, music, and a clear schedule supported the student's learning (Parent Ex. Q ¶ 20). The school principal reported that small group instruction helped the student to be more focused and make progress (id.).[6] Progress was measured informally through worksheets and documented on the end of year progress report which identified "progress" and "currently working on" areas for the student in reading, math, and handwriting (Parent Exs. J at pp. 1-2; Q ¶ 16). At the end of the year, the student read sounds such as diagraphs, decoded cvc, ccvc, cvcc, ccvce, cvcce words, encoded words with short vowel sounds, diagraphs, consonant blends with teacher prompting, read a short paragraph with two to three sentences, answered simple "wh" questions with teacher prompting, and independently read more than 60 sight words (Parent Ex. J at p. 1). In the area of math, the student counted to 50 with 1:1 correspondence, rote counted to 100 and sometimes beyond, identified numbers up to 100, compared two numbers and labeled which one as more or less, and skip counted by 2, 5, and 10 with some teacher prompting (id. at p. 2). The student counted to 100 every day at the start of math group and during transitions after mealtime, multi-sensory activities were used to reinforce number identification, and manipulatives, number lines, and counting on techniques were used to compute problems (id.). In the area of handwriting, the student had mastered all pre-writing skills, but continued to work on mastering diagonal lines, wrote all letters and numbers, but needed to perfect her letter and number formation and writing on smaller lines (id.).
The district's assertion that it was necessary for the parent to show that the unilateral placement implemented an unquantified "sufficient component of academics" is without foundation. Here, the evidence shows that the student's daily schedule allowed for instruction in specific academic areas, and other areas, such as Davening and handwriting group, where "academic" instruction may have also occurred (see Parent Ex. D). Furthermore, the evidence shows that Hamaspik delivered specially designed instruction to the student and that she made academic progress during the 2022-23 school year (see Parent Exs. J at pp. 1-2; Q ¶ 20).
Lastly, the district's argument that Hamaspik was not appropriate because counseling was not provided is not supported by the record. Initially, it should be noted that it is well settled that parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specifically designed to meet the unique needs of the student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, at *9 [S.D.N.Y. Mar. 18, 2010]). "The test for the private placement 'is that it is appropriate, and not that it is perfect'" (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877-78 [2d Cir. 2016] [citations omitted]). Further, review of the evidence in the hearing record demonstrates that Hamaspik addressed the student's social/emotional needs through a combination of classroom instruction, behavior management strategies, speech-language therapy, and OT.
As discussed above, the student exhibited "problem behavior" during transitions, when denied access to preferred items, and when asked to complete a difficult task (see Parent Exs. E at p. 3; G at pp. 3-4; Q ¶ 19). Additionally, the student was easily distracted and copied peers' "unexpected behaviors" (Parent Ex. E at p. 2). The teacher hypothesized that the student's rigidity and self-direction "play[ed] a role" in the student's problem behavior, which presented as noncompliance, property destruction, aggression, and ignoring the teacher's directions (id. at p. 3).
To address these needs, the Hamaspik program description stated that the school used "principles of ABA as well as behavior modification strategies to target specific goals and behavior," and also targeted behavior by providing proactive strategies and reinforcement, a class-wide behavior system, individualized behavior intervention plans as needed, and ongoing support and training (Parent Ex. C at p. 4). Specific to this student, the teacher reported using sensory activities and engagement strategies to improve regulation, and providing support and "contrived opportunities throughout the day to practice shared problem solving" with the student (Parent Ex. E at pp. 2, 3). Concrete teaching methodologies were used to have the student practice and generalize social skills (id. at p. 3). The teacher identified proactive strategies to address the student's behavior including using a schedule, earning a desired item, and providing validation (id.). Reactive strategies used included maintaining the demand, removing preferred items, and providing redirection, sensory activities, and access to self-regulation strategies (id.). Finally, a class-wide behavior plan was used to increase the student's social motivation (id.).
Throughout the hearing record, the Hamaspik progress reports highlighted the student's difficulty with regulation skills and problem behavior, and how these needs were addressed through behavior strategies, speech-language therapy, and OT (see, e.g., Parent Exs. F at p. 2; G at pp. 3-4; I at p. 3; L at p. 4). For example, speech-language therapy focused on improving the student's ability to express her feelings, learn how to play turn-taking games, and develop social/emotional awareness (Parent Ex. F at pp. 2, 3). The student benefitted from practicing real life scenarios presented on picture cards and discussing appropriate ways to act in given situations (id. at p. 2). The speech therapist modeled how to play and engage with peers in turn-taking games and the student required reminders to refrain from taking control over the game and allowing peers to make their own choices (id.). Further, the student gained emotional awareness through visual aids to identify her emotions and was able to express if she was happy or sad with minimal support (id.). The speech-language progress report indicated the student's needs were met by modeling skills, direct instruction, practicing real life scenarios, reminders and prompting, and provision of picture choices and verbal choices (id. at pp. 1-2). The student also engaged in a classroom activity of food preparation using "Sara Ward's Get Ready, Do, Done model for planning, initiation, task sequencing and execution, and task completion" (id. at p. 2). By the end of the year, the student had made gains in problem solving when provided with intermittent prompts and played appropriately with others demonstrated by actions such as asking friends what game to play, taking turns, and cleaning up the game (Parent Ex. K at p. 3). The student also had improved conversational skills such as staying on topic when given occasional reminders, and executive functioning by listing the actions needed to execute the task without visual support and in sequential order (id.). Turning to OT, the occupational therapist reported that the student had made "significant progress in her ability to engage in self-regulating strategies when cued to do so" and was learning "appropriate vocabulary" to use to express herself when she was dysregulated (Parent Ex. G at p. 4). Additionally, the occupational therapist encouraged using tasks promoting "calmness and regulation" throughout the student's daily routine and reported that the student "ha[d] shown improvements in her ability to return to a relaxed state without the need for physical cueing" (id.).
Based on the foregoing, the evidence shows that Hamaspik identified the student's social/emotional needs and addressed them through a variety of methods, albeit not specifically via counseling services, and that the student made progress. Therefore, the district's assertion that Hamaspik was not appropriate due to the lack of counseling services is not supported by the hearing record.
As discussed above, the hearing record contains sufficient evidence to support a finding that Hamaspik was an appropriate unilateral placement for the student. Accordingly, there is no basis to disturb the IHO's finding that the parent satisfied his burden of demonstrating the appropriateness of Hamaspik for the 2022-23 school year.
B. Equitable Considerations
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [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"]).
1. Religious Instruction
Turning to the issue of whether the IHO's equitable tuition reduction was appropriate, the current trend in case law on the issue of public funding for religious instruction permits district funding of nonpublic school tuition without reduction for aspects of religious instruction (see Application of a Student with a Disability, Appeal No. 23-133 [laying out the relevant caselaw through the Supreme Court's decision in Carson v Makin, 596 U.S. 767 (2022)]).
In Carson, the Supreme Court annulled a Maine law that gave parents tuition assistance to enroll their children at a public or private nonreligious school of their choosing because their town did not operate its own public high school (596 U.S. at 789). The program in Maine allowed parents who live in school districts that did not have their own high school or did not have a contract with a school in another district, to send their student to a public or private high school of their selection (id. at 773). The student's home district then forwards tuition to the chosen public or private school (id.). However, the Maine law creating the program barred funds from going to any private religious school (id.). The parents in the Carson case lived in school districts that did not operate public high schools, and challenged the tuition assistance program requirements which they felt would not award them assistance to send their children to religious private schools (id.). The parents sued the Maine education commissioner in federal district court, alleging that the "nonsectarian" requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment (id.). Ultimately, the Supreme Court found the law to be unconstitutional on the grounds that it violated the Free Exercise Clause of the First Amendment by excluding religious private schools from receiving funding (id. at 789).
More recently, in a case where Orthodox Jewish parents sued California school officials over a statutory requirement that nonpublic schools (NPS) must be "nonsectarian" to apply for certification to provide special education services to disabled students, claiming it violated free exercise and equal protection, the Ninth Circuit Court of Appeals explained that when the parent plaintiffs asked that a public benefit—state funding of nonpublic school placements for disabled students—not be restricted to those seeking placement in nonsectarian schools, they plausibly alleged that California's nonsectarian NPS requirement burdened their free exercise of religion. This was because it conditioned public funding for their children's school on that school's nonreligious character and "presented a 'tendency to coerce' them 'into acting contrary to their religious beliefs'" (Loffman v. California Dep't of Educ., 119 F.4th 1147, 1169 [9th Cir. 2024]). In that case, the court held that the statute failed the neutrality test, the government was required to overcome strict scrutiny, and the government's alleged compelling interest in maintaining neutrality toward religion was insufficient to overcome such scrutiny (Loffman, 119 F.4th at 1170-71).
Although, the Supreme Court has not directly addressed the issue of tuition reimbursement for time spent in religious instruction at a unilateral placement, there are some principles that can be applied to this situation. The Supreme Court has directly held that the IDEA is a neutral program that distributes benefits to any child qualifying with a disability without regard to whether the school the child attends is sectarian or non-sectarian (Zobrest v. Calatina Foothills Sch. Dist., 509 U.S. 1, 10 [1993]). In the specific context of tuition reimbursement, some district courts in other states have found that full tuition reimbursement is appropriate under the Establishment Clause (Matthew J. v. Mass. Dep't of Educ., 989 F. Supp. 380 [D. Mass. 1998]; Christen G. v. Lower Merion Sch. Dist., 919 F. Supp. 793 [E.D. Pa. 1996], see Edison Twp. Bd. of Educ. v. F.S., 2017 WL 6627415, at *7 [D.N.J. Oct. 27, 2017] [noting that reimbursement of the funds was to the parents, not a religious school, and that "the sectarian nature of an appropriate school does not preclude reimbursement"], adopted at, 2017 WL 6626316 [D.N.J. Dec. 27, 2017]; R.S. v. Somerville Bd. of Educ., 2011 WL 32521, at *10 [D.N.J. Jan. 5, 2011] [finding that, if an appropriate unilateral placement is sectarian, "neither the IDEA nor the Establishment Clause is violated when the court orders reimbursement to the parents" but noting that a district placement might violate the Establishment Clause]; L.M. v. Evesham Twp. Bd. of Educ., 256 F. Supp. 2d 290, 303 [D.N.J. 2003] [noting that application of the endorsement test would not bar reimbursement of tuition for a unilateral placement in a sectarian school under the Establishment Clause];[7]see also Bd. of Educ. of Paxton-Buckley-Loda Unit Sch. Dist. No. 10 v. Jeff S., 184 F. Supp. 2d 790, 804 [C.D. Ill. 2002]; Doolittle v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 805, 812-13 [1996]).
Among those district courts that have examined the issue with more analysis, it has been held that the tuition reimbursement for the full cost of a school year, "[did] not violate the second prong of Lemon" as it "[did] not in any way advance religion" and that "[t]he only matter advanced is the determination by Congress that a disabled child shall receive a free appropriate public education" which the district was obligated to provide yet "did not do so" (Christen G., 919 F. Supp. at818, citing Lemon v. Kurtzman, 403 U.S. 602 [1971]).[8] Focusing on the indirect aid and individual choice factors discussed in the Supreme Court cases, another district court granted full tuition reimbursement to parents for four school years under the IDEA, determining that the Establishment Clause would not be violated by full reimbursement because the placement was "necessary as a last resort" due to the district's denial of a FAPE, "the aid would go to pay for the student's education in a placement the court f[ound] was otherwise appropriate under the IDEA," and the "funds would be paid without regard to [the school's] sectarian orientation" and directly to the parents individually (Matthew J. v. Mass. Dep't of Educ., 989 F. Supp. 380, 392-93 [D. Mass. 1998], citing Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 488 [1986]).
The district argues that federal law forbids States from paying for any "religious worship, instruction, or proselytization" (Answer and Cross-Appeal ¶ 10, citing 34 CFR 76.532). The district's argument is flawed in several respects. First the party seeking equitable relief for the denial of a FAPE and who incurred the liability for the student's unilateral placement as a result is the parents and they are neither the State nor a subgrantee within the meaning of 34 CFR 76.532. Instead, it was the subgrantee, namely the district, which caused the denial of a FAPE and left the parent to fix it with a self-help remedy and bear the risk that she might not succeed in her Burlington/Carter claims. Accordingly, the regulation does not apply to the facts of this case. Furthermore, the Supreme Court has held the federal regulation in question is not a separate limitation on the IDEA but is merely coextensive with the requirements of the Establishment Clause (Zobrest v Catalina Foothills Sch. Dist., 509 U.S. 1, 7 n.7 [1993]).
The district also asserts that the New York State Constitution prohibits district payment for the portion of the school day attributed to religious instruction in that it states that: "[n]either the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning" (N.Y. Const. art. XI, § 3). Notwithstanding this language, the State Constitution also provides that: "nothing in this constitution contained shall prevent the legislature from providing for the . . . education and support of" individuals with disabilities "as it may deem proper" (N.Y. Const. art. VII, § 8[2]; see Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 96-036).
In this matter, it is uncontroverted that the district failed to offer the student a FAPE for the 2022-23 school year. Based on this, the parent had no choice but to seek remedial relief, and the parent, under the IDEA, had the right to place the student at a school of his choosing and seek funding for it, provided that it was appropriate to meet the student's needs. In this instance, as noted above, the hearing record supports the IHO's determination that Hamaspik was an appropriate unilateral placement for the student for the 2022-23 school year.[9] Thus, direct funding for the cost of the student's attendance at Hamaspik is not precluded by the Establishment Clause of the First Amendment, by any federal or State regulation, or by the State's Constitution. The IDEA has the secular purpose of ensuring that all children with disabilities are offered a FAPE. 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. Accordingly, absent another equitable ground for reduction, the parent is entitled to reimbursement or direct funding for the full cost of the student's tuition.
2. Excessive Services
Notwithstanding the foregoing, the IHO's reduction of the award of tuition based on the provision of religious instruction was not because the relief was precluded under law. Instead, the IHO found that the Davening class exceeded the level required under the IDEA for a FAPE. Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding the reasonableness of the costs of the program or whether any segregable costs exceeded the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
Here, neither the IHO nor the district provide any support for the proposition that the subject matter of a particular class period could cause the class to be treated as a segregable special education service for these purposes, rather than as the type of feature that is "inextricably linked to the substitution" of a private program for a public one (Bd. of Educ. of City Sch. Dist. of City of New York v. Gustafson, 2002 WL 313798, at *7 [S.D.N.Y. Feb. 27, 2002] [finding features such as small class size or greater personal attention were not segregable]). With regard to the degree to which the services are segregable, the authority relating to excessive services applies most frequently when the services are delivered in a separate location or by a provider not affiliated with the main tuition-based program and/or where the costs of the services are itemized or separately billed (see, e.g., Application of a Student with a Disability, 23-130; Application of a Student with a Disability, Appeal No. 21-086; Application of a Student with a Disability, Appeal No. 14-071).
Review of the student's daily schedule indicated that Davening entailed "[r]ead aloud (focusing on vocabulary/comprehension) or shared reading (focus on fluency)" (Parent Ex. D). Further, when asked by the IHO at the impartial hearing about the Davening class, the parent's attorney described it as a class in which "[the students] do sometimes use religious texts to work on skills that are not religious in nature such as comprehension, and vocabulary" (Nov. 18, 2024 Tr. p. 26). The parent's attorney also noted that Davening class is taught in Yiddish (id.).
In this instance, the IHO reduced the student's tuition at Hamaspik for the 2022-23 school year by a percentage based solely on the IHO's interpretation of the student's schedule, finding that portions of the school day were "religious instruction" (IHO Decision at pp. 12-14). However, the IHO did not identify a method for segregating the costs for those portions of the school day and any attempt to do so at this level of the proceeding can lead only to further problems. While the district argues for a reduction based solely on the amount of time spent in Davening class, it is worth noting that there is no indication in the hearing record that costs for any of the student's classes equates to funding for any other class. Additionally, as the hearing record provides no concrete information as to the school's method for financing its activities, there was no reasoned way for the IHO to know what portion of the student's tuition, if any, was actually used to pay for the portions of the school day devoted to religious instruction. Even if the proportion of the student's schedule devoted to "religious instruction" could plausibly be calculated based solely on the student's schedule, this would raise still more questions regarding the incorporation of religion in other aspects of the day and/or the educational benefits that the student may have received through the periods devoted to "religious instruction" beyond the religious aspect. Rather, "the situation does not permit a fair approximation of the value of the services received" compared to the program overall and, therefore, equity supports full reimbursement (Gustafson, 2002 WL 313798, at *7).
Accordingly, the parent is entitled to reimbursement or direct funding for the full cost of the student's tuition.
VII. Conclusion
Based on the foregoing, the hearing record supports the IHO's determination that Hamaspik was an appropriate unilateral placement that provided specially designed instruction to address the student's unique needs. Additionally, having reviewed the evidence in the hearing record, there is no basis for a finding that the federal regulation or the Establishment Clause bars the district from funding the religious portion of the student's education program at Hamaspik and there is no evidence in the hearing record to support the IHO's finding that the time the student spent in "religious instruction" was segregable form the student's overall educational program such that a specific direction could be made for reducing the costs of the student's tuition at Hamaspik for the 2022-23 school year.
I have considered the parties' remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision, dated December 6, 2024, is modified by reversing that portion which reduced tuition funding for a portion of the school day due to the provision of religious instruction; and
IT IS FURTHER ORDERED that the district shall fund the total cost of the student's tuition at Hamaspik for the 2022-23 school year including reimbursement to the parent for any out-of-pocket expenses incurred related to the student's attendance and tuition at Hamaspik.
Footnotes
[1] Hamaspik has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[2] Although the hearing record did not include a district IEP developed for the student, the parties do not dispute that during the 2022-23 school year the student was eligible for special education as a student an intellectual disability (Parent Ex. A at p. 1; see Parent Exs. B-Q; IHO Ex. I; 34 CFR 300.8[c][6]; 8 NYCRR 200.1[zz][7]).
[3] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 580 U.S. at 402).
[4] On appeal, the district asserts that Hamaspik's paraprofessionals "were not required to have experience dealing with students in need of special education," and "[t]herefore, it did not appear that these behavioral paraprofessionals would have had the training or experience to allow them to handle the [s]tudent's problematic behaviors" (see Answer ¶ 5). However, there is no dispute that a teacher was assigned to the class and the district does not challenge the teacher's experience. Further, the principal testified that the paraprofessionals at Hamaspik were "required to have a high school degree and previous experience with children with special needs [wa]s preferred" (Parent Ex. Q ¶ 9).
[5] As discussed above, is uncontested that the student was eligible for special education services as a student with an intellectual impairment, and her progress reports describe her global developmental delays in academic learning, communication, social, motor, and ADL skills (Parent Ex. A at p. 1; see Parent Exs. E-L). The obligation to determine the student's specific intellectual level was on the district.
[6] It is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, review of the evidence as described above shows that the student did make progress during the school year at issue (see Parent Exs. J-M).
[7] In L.M. v. Evesham Township Board of Education, the district court did not decide whether the parent was eligible for tuition reimbursement because the court remanded the case to determine whether the student was offered a FAPE and if the unilateral placement was appropriate (256 F. Supp. 2d at 305).
[8] The second prong of the test set forth in Lemon v. Kurtzman, which has since been abandoned, was that the government action could not have a primary effect of advancing or inhibiting religion (403 U.S. 602, 612-13; see (Kennedy v Bremerton School Dist., 597 U.S. _, 142 S. Ct. 2407, 2411 [2022] [holding that the Supreme Court "long ago abandoned Lemon and its endorsement test offshoot"]).
[9] Rather than weighing the amount of time the student spent receiving religious instruction, or instruction not tied to special education or an academic curriculum, as an equitable consideration, the proportionate amount of time the student spent receiving such instruction during the school day may, in some cases, weigh as a factor regarding the appropriateness of the unilateral placement (see, e.g., Doe v. E. Lyme Bd. of Educ., 2012 WL 4344304, at *19 [D Conn Aug. 14, 2012] [finding a unilateral placement inappropriate because the school did not provide special education supports and the student spent a substantial amount of time receiving religious education], adopted as mod at, 2012 WL 4344301 [D Conn Sept. 21, 2012], aff'd in part, vacated in part, remanded sub nom. 790 F.3d 440 [2d Cir 2015]). However, here, as described above, Hamaspik provided an appropriate program for the student and the purported religious instruction (described as Davening) did not compromise a majority of the school day.