STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-054
Application of a STUDENT WITH A DISABILITY, by her parents, 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:
Thivierge & Rothberg, PC, attorneys for petitioners, by Katharine Giudice, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their daughter's tuition at the IVDU Girls Elementary School (IVDU), including the costs of 1:1 paraprofessional and board certified behavior analyst (BCBA) services for the 2024-25 school year. The parents also appeal from the IHO's refusal to consider their request for special transportation services. The district cross-appeals from the IHO's alternative findings related to equitable considerations. The appeal must be sustained in part. 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
The hearing record is sparse with respect to the student's educational history and needs. No IEP for the student was entered into evidence during the impartial hearing (see Tr. pp. 1-63; Parent Exs. A-M).[1], [2]
The student has attended IVDU since the 2020-21 school year and, according to the parent, exhibited "learning and academic delays" and difficulty with distractibility, attention, and focus (Parent Exs. K ¶ 11; L ¶¶ 1, 3, 5).[3] The parents signed a tuition contract on April 9, 2024, for the student to attend IVDU during the 2024-25 school year (Parent Ex. B at p. 1).[4] According to the contract, the base tuition at IVDU was $106,000 and it included related services (id.). The cost of the 1:1 paraprofessional services were separate from the base tuition and was $30,000 for the 2024-25 school year (id.). The parents also signed an addendum to the tuition contract on May 30, 2024 for "[b]ehavioral [c]onsultant services" to be added to the student's program at a cost of $9,100 for the 2024-25 school year (id. at p. 2).[5]
On August 15, 2024, the parents sent a letter to the district indicating that the student had previously been found eligible for special education as a student with a speech or language impairment but that the district had not created an IEP for the student or offered any program for the 2024-25 school year (Parent Ex. J). The parents stated they were open to meet with the district to consider any options recommended for the student but that, absent a timely and appropriate recommendation, they would be enrolling the student at IVDU with 1:1 paraprofessional support and would seek public funding for the cost of the student's tuition (id.). The parents also requested that the district provide special transportation to the student (id.). The student attended IVDU during the 2024-25 school year in a fourth-fifth grade special education class (Parent Ex. K ¶ 16).
A. Due Process Complaint Notice
In a due process complaint notice dated September 4, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year by failing to timely develop an appropriate IEP for the student and to offer a timely school placement (Parent Ex. A at p. 1). The parents alleged they sent a letter to the district on August 15, 2024, requesting an IEP and special education program for the student for the 2024-25 school year but that the district did not respond or convene a CSE meeting (id. at p. 2). According to the parents, the student had global delays in the areas of cognition, academics, speech, sensory processing, motor skills, and behaviors and had previously been found eligible for special education services as a student with a speech or language impairment (id. at p. 1). The parents also claimed that the student was highly distractible and required 1:1 support for redirection (id. at p. 2). The parents alleged that the student's unilateral placement at IVDU in a small class with behavior and 1:1 support was appropriate to meet her special education needs and that equitable considerations supported their requested relief (id.). As relief, the parents requested that the district be required to reimburse/directly fund the tuition costs and expenses of the student's special education program at IVDU with 1:1 paraprofessional, behavior consultation, and special transportation services (id. at p. 3). The parents also requested a pendency order based on a prior IHO decision dated November 12, 2023 (id. at p. 2).
B. Impartial Hearing Officer Decision
The parties proceeded to a prehearing conference before an IHO from the Office of Administrative Trials and Hearings (OATH) on October 9, 2024 (Oct. 9, 2024 Tr. pp. 1-5). A representative for the district did not appear for the prehearing conference (id.). During the prehearing conference the IHO indicated there was a pendency agreement between the parties and the parents' attorney agreed that pendency no longer needed to be addressed (Oct. 9, 2024 Tr. p. 3). The parties then proceeded to an impartial hearing on December 20, 2024, which concluded the same day (Tr. pp. 1-63).
In a decision dated January 6, 2025, the IHO found that the district denied the student a FAPE for the 2024-25 school year because there was no IEP or evaluation and the district presented no documentary evidence to show that it offered the student a FAPE (IHO Decision at p. 6). The IHO then considered the appropriateness of the parents' unilateral placement of the student at IVDU (id. at pp. 8-10). The IHO addressed the parents' requested relief for tuition at IVDU, 1:1 paraprofessional services, and BCBA behavior consultation services separately because the services "were separately contracted" (id. at pp. 8-9).
The IHO found that the parents did not meet their burden to establish that IVDU was an appropriate unilateral placement for the student for the 2024-25 school year, noting that the parents did not present evidence in the form of progress reports or report cards or testimony related thereto, notwithstanding that such report could have been prepared prior to the December 2024 hearing date, which was "nearly 4 months after the beginning of the school year" (IHO Decision at pp. 9-10). The IHO also noted that there was a document in the hearing record that indicated the student's goals but that there was no evidence of what IVDU was delivering to the student (id. at p. 9). The IHO then determined that evidence of the student's progress through the testimonies of the parent and the IVDU principal was not sufficient to establish a basis to award tuition reimbursement (id.).
Next, the IHO determined that the parents did not introduce sufficient evidence regarding 1:1 paraprofessional services (IHO Decision at p. 10). The IHO found that "[a]lthough there [wa]s some evidence in the record that [the s]tudent could benefit from 1:1 instruction, [he found] it implausible that a classroom with a 3:5 student to teacher/assistant teacher/paraprofessional ratio would be insufficient to meet [the s]tudent's needs" (id.). Next, the IHO determined that the parents did not meet their burden to establish that BCBA behavior consultation services were appropriate or necessary for the student (id. at p. 11). The IHO found that, although the student had a behavioral intervention plan (BIP), there were no indications that the student required a BCBA to address the target behaviors in class, especially with the "3:5 student to teacher ratio excluding [the s]tudent's paraprofessional" (id.). Similar to the IHO's determination regarding the appropriateness of IVDU, the IHO found that there were no progress reports, no indications of the areas worked on with the student, no indications of progress other than the parent's and principal's "conclusory statements of progress," no description of the specific service delivered to the student, and no assessments to support the student's need for BCBA behavior consultation services (id.). Next, the IHO considered the parents' request for special transportation services and found it unnecessary to address given the parties had agreed that the student was receiving appropriate transportation from the district (id.).
Lastly, in the alternative, the IHO addressed equitable considerations and found that the equities would have favored the parents (IHO Decision at pp. 11-13). The IHO found that the parents provided the necessary 10-day notice of their concerns and of their intention to unilaterally place the student at IVDU, and that the district did not submit evidence describing its response to the 10-day notice letter (id. at p. 12). Regarding the parents' request for direct funding and reimbursement of the IVDU tuition costs, the IHO found that the parents would have had a right to retroactive direct tuition payment regardless of their inability to pay (id.). The IHO also found that the district made no argument that the total tuition amount should be reduced as a matter of equities on the basis that there were portions of the school day at IVDU constituting religious instruction and "independently" found that there would have been no basis for such reduction (id.). For those reasons, the IHO determined that, had the parents met their burden to prove the appropriateness of the unilateral placement, they would have been entitled to tuition reimbursement and direct funding and that the cost of tuition was reasonable (id. at p. 13).
Accordingly, the IHO denied the parents' requested relief for tuition funding at IVDU and dismissed the due process complaint notice with prejudice (IHO Decision at p. 15).[6]
IV. Appeal for State-Level Review
The parents appeal and allege that the IHO erred in determining they did not demonstrate that IVDU was an appropriate unilateral placement for the student for the 2024-25 school year and erred by denying their request for tuition funding. The parents also allege the IHO erred in denying funding for 1:1 paraprofessional services and BCBA behavior consultation services. In addition, the parents allege the IHO incorrectly refused to address their request for special transportation.[7] The parents submit two additional documents to be considered on appeal.[8] As relief, the parents request reversal of the IHO's determination that they did not meet their burden to prove that IVDU was an appropriate unilateral placement to meet the student's needs and an order directing the district to prospectively fund the student's tuition, costs, and expenses at IVDU including the cost of 1:1 paraprofessional and BCBA behavior consultation services and for the district to provide special transportation.
In an answer with cross-appeal, the district asserts that the IHO's determinations should be upheld but cross-appeals from the IHO's determination that equitable considerations favored the parents. The district requests a reversal of the IHO's finding that an equitable deduction would not have been warranted for religious instruction. In an answer to the district's cross-appeal, the parents respond to the district's material allegations.
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]).[9]
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
The district has not appealed from the IHO's findings that it failed to offer the student a FAPE for the 2024-25 school year or that the parents sent the required 10-day notice letter and cooperated with the district and CSE. Therefore, these findings have 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]).
A. Unilateral Placement
I turn now to the parties' dispute regarding whether IVDU was an appropriate unilateral placement for the student during the 2024-25 school year.
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).
As noted above, the IHO considered the student's enrollment at IVDU separately from the 1:1 paraprofessional and BCBA behavior consultation services because the services "were separately contracted" (IHO Decision at pp. 8-9). However, the student's unilateral placement in this matter is comprised of the student's attendance at IVDU along with the 1:1 paraprofessional and BCBA behavior consultation services provided to the student by IVDU. The 1:1 paraprofessional and BCBA behavior consultation services were not included in the IVDU base tuition but they were provided to the student by IVDU (see Parent Ex. B). Even if the services were separately contracted or provided by a different private school or agency, it is clear that a parent may privately secure services for a student in addition to a private school placement as part of a unilateral placement (see C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838-39 [2d Cir. 2014] [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and noting that the parents had privately secured the required related services that the private school did not provide], quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 [2d Cir. 2006]). To the extent the IHO considered the 1:1 paraprofessional or BCBA behavior consultation services to constitute maximization of services that the district was not required to fund, such a finding may have been an appropriate equitable factor to consider in determining appropriate relief based upon the evidentiary record (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, 101 [2d Cir. Jan. 19, 2017]). However, as the Second Circuit has explained, it is not appropriate for an IHO to "conduct[] reimbursement calculations in [the] appropriateness analysis"; rather, "[t]he first two prongs of the [Burlington/Carter] test generally constitute a binary inquiry that determines whether or not relief is warranted, while the third enables a court to determine the appropriate amount of reimbursement, if any" (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024]). Here, the IHO inappropriately considered the unilateral placement to be comprised of separate components and made discrete findings about the appropriateness of the student's enrollment at IVDU, the 1:1 paraprofessional services, and the BCBA behavior consultation services without considering the totality of the circumstances. This splintering of the IHO's conclusion regarding the appropriateness of the unilaterally obtained services was error.
1. Student's Needs
Although not in dispute on appeal a brief discussion of the student's needs is necessary to resolve the issue of whether IVDU with 1:1 paraprofessional and BCBA consultation services was appropriate for the student.
The IVDU principal (principal) provided direct testimony by affidavit (Parent Ex. K). According to the principal's testimony, the student performed at approximately a first/second grade level in reading and math, exhibited poor attention span, difficulty completing a task, aversion to using writing materials, difficulty maintaining a quiet demeanor during classwork time, and struggled to answer topic questions appropriately during group lessons (id. ¶ 12). The principal further testified that the student presented with behavioral challenges which impacted her ability to learn, specifically that she displayed impulsive, oppositional, and noncompliant behavior, and would tantrum, which included screaming and crying (id. ¶ 13). The principal averred that, when the student had behavioral challenges, she was unable to engage in classwork and disrupted her own learning, and needed the interventions of a 1:1 paraprofessional and behavior consultation services (id.). Review of the student's BIP created by the BCBA at IVDU on September 25, 2024, reflects that the student engaged in crying and noncompliance behaviors as a means to escape undesirable demands (Parent Ex. F). According to a September 17, 2024 letter describing the behavior consultation services delivered by a BCBA, the student's "maladaptive interfering behaviors" included noncompliance with completing tasks within a specific time (Parent Ex. G).
At the start of the 2024-25 school year, IVDU identified the student's need to improve her phonics and reading comprehension skills, her ability to write sentences and spell words with specific phonics rules, and her math computation skills (Parent Ex. H at p. 1). Regarding language and communication skills, the student needed to improve her receptive and expressive language skills, her ability to sequence picture scenes, and her verbal reasoning skills (id.). IVDU also identified the student's social/emotional needs, including that she needed to improve her ability to use words to problem-solve and express herself, and transition to another activity (id. at p. 2). Regarding gross and fine motor skills, IVDU identified that the student needed to improve her core strength and balance, fine motor and hand manipulation skills, ability to copy shapes and letters, lower extremity strength and coordination, and physical endurance (id.).
The parent also provided direct testimony by affidavit (Parent Ex. L). The parent testified that the student had "learning and academic delays" and that she was "not up to grade level in reading and math" (id. ¶ 3). The parent reported that the student struggled with writing and was "very resistant to writing" (id.). The parent also testified that the student's behaviors impacted her education, describing the student as defiant, oppositional, and stubborn (id. ¶ 4). The parent further testified that the student was often resistant to doing classwork, especially writing and homework (id.). The parent stated that, when she asked the student "to do something," the student responded by arguing, resisting, yelling, and crying (id.). The parent also opined that the student needed 1:1 paraprofessional and behavior consultation support to give her constant redirection, refocusing, and support (id. ¶ 15). The parent opined that, without 1:1 paraprofessional services, the student argued, would not want to complete any work, and would be unable to learn (id.).
The district argues in its answer and cross-appeal that the evidence in the hearing record was inadequate to determine the student's special education needs, yet the district, like the IHO in his decision, inappropriate faults the parents for not identifying the student's needs. However, such a rationale has been found to improperly switch the responsibility for identifying the student's needs from the district to the parent (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]). Further, the district has not presented any evidence to rebut the parent's and principal's descriptions of the student's needs.
2. Unilateral Placement at IVDU
According to the program description and the principal's testimony, IVDU served students with special needs from ages 5 to 14 years old who required small classes, intensive teaching, individual supports, and differentiated instruction in "a comprehensive and nurturing educational environment" (Parent Exs. D; K ¶ 6). The school provided a small student to teacher ratio with State licensed and certified teachers and the related services of speech-language therapy, occupational therapy (OT), physical therapy (PT) and counseling (Parent Ex. D).
The IVDU principal testified that during the 2024-25 school year the student was placed in a fourth-fifth grade special education class consisting of five students, one teacher, one teacher assistant, one classroom paraprofessional, and the student's individual 1:1 paraprofessional (Tr. pp. 29-31; Parent Ex. K ¶ 16). The student's teacher held a master's degree and State certification in special education (Parent Ex. K ¶ 16). According to the principal, the student's special class included students who worked at an "approximate first/second grade level for reading and math," had similar learning styles, and worked at a similar pace as the student (id. ¶¶ 12, 17). The principal testified that the student received multimodal and multisensory instruction in small groups or individually (id. ¶¶ 17, 18). To support the student as she worked, larger tasks were broken down into smaller steps, and the student received verbal praise and token prizes (id. ¶ 18).
The evidence showed that the student received two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and one 30-minute session per week of individual counseling services (Parent Exs. E; K ¶¶ 51-54). The principal testified that the student's related services were provided by licensed clinicians (Parent Ex. K ¶¶ 45, 51-54).
According to the student's individual class schedule, she received five 45-minute periods per week of reading instruction, three 30-minute periods per week of English language arts (ELA), three 30-minute periods per week of literacy instruction, five 30-minute periods per week of math instruction, five 30-minute periods per week of morning meeting/calendar math, two 30-minute periods per week of science instruction, two 30-minute periods per week of social studies instruction, one 30-minute period per week of social skills, and four 30-minute periods per week of foreign language (Parent Ex. E). The principal testified that the student attended "a number of classes" for ELA instruction including reading, language arts, and literacy (Parent Ex. K ¶ 34). The principal averred that IVDU's literacy instruction was "based on the model that no one method or strategy w[ould] teach all children" and that IVDU used "a variety of approaches and materials for reading" (id.). The principal testified that IVDU's "primary tool was the Wilson Reading System . . . supplemented by the multisensory Read Bright program for the primary grades" (id.). According to the principal's testimony, the student received daily reading instruction during her reading class in a small group of students who were placed in that instructional group based on results of administering the "Wilson Assessment for Decoding and Encoding" (id. ¶ 36). The principal testified that the student's class used the "E[very] D[ay] C[ounts] C[alendar] M[ath]" program and a "scope and sequence program called Ablenet" to review the student's math progress and "adapt work if needed" (id. ¶¶ 33, 40).
The principal also testified that the student attended a weekly social skills class to address her social skills with peers (Parent Ex. K ¶ 45). Using the "Social Thinking curriculum," the student worked on identifying emotions, being a good friend, maintaining a positive attitude, respecting others' personal space, and engaging in appropriate social communication (id.). According to the principal's testimony, with support, the student learned through worksheets, videos, modeling, and role play, which "was especially appropriate for [the student], to target her deficits in frustration tolerance (sometimes linked to her difficulty with language use), self-regulation, social communication, peer play, and relationship skills" (id.).
IVDU developed academic annual goals for the student for the 2024-25 school year (Parent Ex. H at p. 1). For reading, annual goals were for the student to read independently with improved phonics and comprehension skills, and read the phonics rules such as, CVC, cluster, glued sounds, long vowels, and vowel teams, in isolation and in short passages with 80 percent accuracy (id.). For reading and listening comprehension, the student was required to correctly identify the sequence of events in a story using the terms "first, next, and last," and use strategies such as predicting, retelling, questioning, and contextualizing to understand what was being read or heard (id.). For writing, IVDU developed annual goals for the student to improve her early writing skills via completing simple sentence starters and copying descriptive sentences and short paragraphs from the board, and to spell words with CVC, cluster, glued sounds, long vowels, and vowel teams with 80 percent accuracy (id.). For math, the student was required to add single digits up to multiples of 10; "add +1 to +5 to any given number within 100 -- by counting up"; review subtraction "-1 to -5 and then continue to learn -6 to -10, within sum of 10"; sort, label, and state the correct value of any combination of pennies and dimes within the sum of 100; recognize the hundreds, tens and ones places; correctly state the value of an underlined digit when given a three-digit number and; compare and order three-digit numbers (id.).
For counseling goals, the student was required to improve her communication skills by increasing her use of words to problem-solve and express herself instead of resorting to becoming aggressive or saying "no" when things did not go her way, and to transition to the next activity and comply within 15 seconds with one prompt (Parent Ex. H at p. 2). The student's OT goals focused on improving her ability to focus on activities during therapy sessions, "specifically the focus/school moves to help increase attention during class"; improve her core strength and overall balance "via yoga poses, animal walks, therapy ball exercises and more complex obstacle courses"; demonstrate improved fine motor and "in hand manipulation [manual dexterity] skills" to complete activities of daily living (ADLs) and improve her ability to copy shapes and letters with visual cues and attention to dynamic grasp (id.). The student's goals in PT addressed demonstrating improved lower extremity strength; improved physical endurance; and improved lower extremity strength and coordination in order to safely navigate her school environment (id.). In the area of speech-language therapy, the student's annual goals addressed her need to increase receptive and expressive language skills by responding to a variety of "wh" questions (who, what, when, where and why) and identify story elements based on an orally presented story, storybook, and/ or picture scene; improving her ability to sequence four-to-five picture scenes correctly as well as orally retell a story and/or personal narrative, with 80 percent accuracy; and demonstrate improved verbal reasoning skills for comparing, contrasting and describing, with 80 percent accuracy (id.). The principal's testimony supported the above goals and statements that the student received OT, PT, and counseling services (compare Parent Ex. H, with Parent Ex. K ¶¶ 15, 45, 51-54).
With respect to the 1:1 paraprofessional services, as summarized above, the student was described as distractible and as presenting with behaviors that impacted her education (see Parent Exs. K ¶ 24; L ¶¶ 3-4). The principal testified that the student was assigned "all day" to a 1:1 paraprofessional for the 2024-25 school year for behavioral support (Tr. p. 30; Parent Ex. K ¶¶ 23-24). The principal opined that the student "need[ed] the 1:1 support of a paraprofessional to help implement her individual BIP and to provide the full-time support throughout the day" (Parent Ex. K ¶ 24). According to the principal, the 1:1 paraprofessional "ensure[d]" that the student followed the routine, that her behavioral interventions were implemented, and that she accessed her education "without frequent disruptions to the rest of the class" (id. ¶ 25). In addition, the principal's written testimony stated that "in order to sustain attention and focus and remain on task for learning, [the student] require[d] near constant reinforcement, redirection, and refocusing" (id. ¶ 26). Further, the principal testified that the school determined the student needed a 1:1 paraprofessional academically to break down the curriculum and for "behavioral and social reasons" (Tr. p. 23). Additionally, the parent testified that the student needed the 1:1 paraprofessional to give her "constant redirection, refocusing, and support" (Parent L ¶15). The parent also testified that the 1:1 paraprofessional could give the student breaks when she argued or exhibited tantrums, and that she would "be unable to learn" without the support of the 1:1 paraprofessional (id.).
The district argues in its answer that the 1:1 paraprofessional did not carry the required certifications or licensure to provide direct instructional services pursuant to State regulations.[10] The district argues that these requirements should be instructive on what qualifications a paraprofessional should possess in order to assist the student with her academic and behavioral needs. However, it is well-settled that a parent need not engage the services of a certified special education teacher—or, as here, a 1:1 paraprofessional—in order to qualify for reimbursement or direct funding of those services (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]). Moreover, the principal testified that the student's 1:1 paraprofessional was "pursuing" a bachelor's degree and received professional development from IVDU (Tr. pp. 24-25; Parent Ex. K ¶ 23). Under the totality of the circumstances, I do not find the 1:1 paraprofessional's purported lack of certification or licensure fatal to a finding that IVDU inclusive of 1:1 paraprofessional services and BCBA consultation services was an appropriate unilateral placement
With regard to the behavioral consultation services the student received during the 2024-25 school year, the hearing record includes a May 30, 2024 contract addendum, a September 17, 2024 description of behavior consultation services, a September 25, 2024 BIP, written testimony from the principal and the parent, and testimony provided during the impartial hearing (Tr. pp. 6-34; 35-45; Parent Exs. B; F; G; K; L). According to the September 17, 2024 behavior consultation services description signed by the principal, IVDU hired a BCBA to assist with the student's "maladaptive behaviors" such as noncompliance (Parent Ex. G). According to the description, the BCBA conducted assessments to identify the student's problematic behaviors and their causes (id.). The principal testified during the impartial hearing that a functional behavioral assessment (FBA) was not formally completed (Tr. p. 10). When questioned if an informal assessment was documented or written down the principal testified that the assessment was "informally written down on paper" (Tr. pp. 10-11).
According to the description of the 2024 behavior consultation services, the BCBA designed an individualized BIP "aimed at teaching [the student] more appropriate behaviors" (Parent Ex. G). The description of the behavior consultation services further indicated that the student's maladaptive interfering behaviors included noncompliance and an inability to complete a task in a specified time (id.). Once the BIP was developed, the BCBA oversaw the implementation of the BIP by working with the student's teacher and paraprofessional to ensure consistent and effective delivery of the BIP and providing training to the teacher and paraprofessional on managing behavior interventions (id.). Additionally, the BCBA would "collect and analyze data on the behaviors being addressed to check progress and adjust interventions as needed" (id.). The principal also testified during the impartial hearing that the BCBA "model[ed] the behavior plan for the teacher and paraprofessionals," provided "informal ABA," and dedicated about "[t]wo hours of ABA" to the student weekly (Tr. pp. 14, 16-17).
According to the principal's written testimony, the BCBA worked with students who had maladaptive behaviors (Parent Ex. K ¶ 8). The student's September 25, 2024 BIP identified the two targeted behaviors of "[c]rying" and "[n]on-compliance" (Parent Ex. F at p. 1). The BIP specifically defined the targeted behaviors, their topography, and functions (id.). For example, functions of the student's crying behavior were to "escape from undesirable demands being placed on her, or to gain access to tangibles" (id.). Proactive strategies identified to use with the student were to read a social story "outlining the times that it [wa]s and [wa]s not appropriate to cry" (id.). The student was also provided with training to identify the size of a problem and determine if her reaction matched the size of the problem (id.). Replacement behavior in the form of functional communication training taught the student to "request access to items" and learn to request help (id.). Reactive and de-escalation strategies identified for staff were to prompt the student's functional communication, reinforced by modifying the demand, and denying access to tangibles until the student used functional communication (id.).
According to the September 2024 BIP, the second targeted behavior identified was the student's non-compliance, which was defined as "[a]ny instance of saying 'no' or ignoring an instruction given by an adult," and "not complying within one minute" (Parent Ex. F at p. 1). The hypothesized function of this behavior was to "escape demand" and proactive strategies identified were to teach the student the expected behaviors and to follow directions in school (id.). Replacement behaviors included "compliance training - reinforcement for when [the student] follow[ed] directions" and "[f]unctional [c]ommunication [t]raining - learning to request help" (id.). Identified reactive/de-escalation strategies for staff included to redirect the student to the task at hand, prompt as necessary, maintain demand, and reinforce once compliance was gained (id.).
The 2024 BIP indicated that the student would "work[] on" the behavioral skills of completing a task within a predetermined time frame, following directions given by a surrounding adult, identifying the size of the problem, matching the size of the reaction to the size of the problem, modifying her reaction to match the size of the problem in a natural setting, asking for help during difficult tasks, and when prompted, asking for a modification rather than engaging in non-compliance (Parent Ex. F at pp. 1-2).
Consistent with the BCBA's description of the student's behaviors, according to the principal's written testimony, the student presented with behavioral challenges that impacted her ability to learn such as "impulsive, oppositional, and non-compliant behavior" (compare Parent Ex. K ¶ 13, with Parent Ex. F). These behaviors included "throwing tantrums, screaming and crying," which affected her ability to engage in classwork and disrupted her learning (Parent Ex. K ¶ 13). The principal testified during the impartial hearing that for the 2024-25 school year IVDU added a BCBA to the student's program because "we needed a formal behavior plan to be created and for someone to work with the teacher and the paraprofessional in how to combat these maladaptive behaviors" (Tr. p. 24). The principal also testified during the impartial hearing that the previous year the student worked with the social worker, but the team felt that they were not making as much progress with the student as they believed the student could make (id.).
In addition, the parent's written testimony reflected that she believed the student "need[ed] the behavior consultation with [the] BCBA who developed a behavior plan for [the student] and provide[d] that additional oversight to address [her] challenging behavior" (Parent L ¶ 16). The parent also testified during the impartial hearing that the student needed "direction," to focus on "proper" social behaviors, and to not exhibit tantrum behaviors including stomping her feet and getting upset (Tr. pp. 42-43). The parent testified during the impartial hearing that the student "definitely made progress and it's definitely been better" and that the "behavioral plan made a big difference" (Tr. p. 40).
As a final matter, regarding the program offered at IVDU, the IHO took issue with the fact that the only evidence of the student's progress was through testimonial evidence. However, it is well settled that, while a relevant factor (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), 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). Although progress is not dispositive in determining whether a unilateral placement is appropriate, the principal testified that the student was "demonstrating meaningful progress overall toward her instructional targets and school participation," and that she was "very pleased with [the student's] improvements academically, emotionally, and socially during the 2024-25 school year (Parent Ex. K ¶ 59). According to the parent's testimony, IVDU was "appropriate," and the student "made progress" in reading and math (Parent Ex. L ¶ 14). More specifically the parent testified that the student "recognize[d] sight words," was "more interested in reading," and "attempt[ed] to read" (id.). The parent also testified that the student had "improved in addition and subtract[ion]" and was "able to add and subtract more quickly" (id.). The parent opined that "[o]verall [the student]'s academic progress [wa]s slow and steady" (id.).
The IHO also cited Application of a Student with a Disability, Appeal No. 24-447, for the proposition that testimonial evidence was insufficient to prove the unilateral placement provided specially designed instruction to the student. In Application of a Student with a Disability, Appeal No. 24-447, the witnesses lacked direct knowledge of the program the student attended and there was no representative from the unilateral placement who testified (see Application of a Student with a Disability, Appeal No. 24-447). In this matter, the IVDU principal provided direct testimony describing her significant first-hand knowledge of the student, the student's program, and detailed how the program addressed the student's needs (see Parent Ex. K). Unlike the witnesses in Application of a Student with a Disability, Appeal No. 24-447, the IVDU principal observed the student daily and conducted many classroom observations of the student's "formal and informal learning" (Parent Ex. K ¶ 14). Accordingly, the IHO's reliance on Application of a Student with a Disability, Appeal No. 24-447 is misplaced, as a review of the hearing record in this matter shows there was sufficient evidence demonstrating that the student received specially designed instruction at IVDU and that the program at IVDU addressed the student's educational needs.
Based on the totality of the circumstances, the parents presented sufficient evidence to demonstrate the appropriateness of the unilateral placement at IVDU inclusive of a 1:1 paraprofessional and BCBA behavior consultation services for the 2024-25 school year. As indicated above, it was error for the IHO to consider the parents' unilateral placement as separate components. The hearing record demonstrates that the parents' unilateral placement constituted specially designed instruction to address the student's needs when viewed in light of the totality of the circumstances. Thus, the IHO's determinations to the contrary must be reversed.
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"]).
The IHO made an alternative determination that equitable considerations favored the parents (IHO Decision at pp. 11-13). Specifically, the IHO determined that the parents sent the necessary 10-day notice letter, the parents cooperated with the district and the CSE, the cost of tuition at IVDU was reasonable, and that the district did not make any arguments that the total tuition amount should be reduced because there were portions of the school day at IVDU constituting religious instruction (id.).
However, as discussed above, the IHO also found that, while "there [wa]s some evidence in the record that [the s]tudent could benefit from 1:1 instruction," he found it "implausible" that a classroom with five students and three staff "would be insufficient to meet [the s]tudent's needs" and did not award funding for the 1:1 paraprofessional services or behavioral consultation services (IHO Decision at pp. 10-11). The IHO's findings in this regard are equitable considerations related to whether the parents' unilateral placement exceeded the requirements to provide 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 whether the tuition or rate charged by the private school was unreasonable or regarding any segregable costs charged by the private school that exceed 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, the district did not argue during the impartial hearing that the 1:1 paraprofessional and behavior consultation services were excessive and not necessary for the student (see Tr. pp. 1-63), and the parents presented evidence that the student's program at IVDU, including the 1:1 paraprofessional and behavior consultation services provided an educational benefit to the student.
During the impartial hearing, the IHO inferred that the student's special class ratio was essentially five students-to-three adults and questioned the principal on why that was not enough support for the student (Tr. pp. 30-33). The IHO further questioned the principal and specifically asked "why couldn't just either the assistant teacher or the teacher herself or even one para[professional] be able to redirect a student or even both students who require para[professional]s" (Tr. p. 32). The principal responded, "we want[ed] to give [the student] all that she need[ed], and so we fe[lt] that she need[ed] the 1:1 [paraprofessional] for that" (Tr. p. 33).
The IHO further questioned the principal, asking why a classroom paraprofessional was insufficient to support the student, given "nearly a 1:1 teacher/para ratio . . . in the classroom" (Tr. pp. 30, 31). The principal testified that she did not "believe that a classroom para[professional] would be enough for [the student] because she need[ed] a lot of redirection, refocusing" and needed the "1:1 learning because someone need[ed] to be breaking down tasks with her, sitting next to her when issues of frustration occur[ed], someone to sit next to her and help her work out her feelings" (Tr. pp. 30-31). The principal further opined that she didn't believe that a classroom paraprofessional who would also need to give attention to the other students would be enough for the student (Tr. p. 31).
As discussed above, the principal testified that the "small class ratio, coupled with [the student's] 1:1 paraprofessional intervention, helped support her needs in the areas of focus and attention" which "led to better learning opportunities and more progress" (Parent Ex. K ¶ 19). The parent testified that "[b]ehavior wise [the student] ha[d] made progress but she still need[ed a] 1:1 paraprofessional and behavior consultation support" (Parent Ex. L ¶ 15). The IHO asked the parent if she had discussed the need for a 1:1 paraprofessional with "anybody at IVDU" and the parent responded that it was "possible, you know, offhand I don't remember who exactly I spoke to" (Tr. p. 41). Upon further questioning from the IHO, the parent agreed that it was "fair to say that IVDU recommended that [the student] have a 1:1 paraprofessional" and that she did not receive a written recommendation (id.). On redirect examination the parent was asked if IVDU provided a verbal justification for a 1:1 paraprofessional, and the parent responded that "[t]hey told me that they thought she would do much better with it and they thought it was necessary" (Tr. p. 42).
Taking into account the foregoing and the above discussion of the appropriateness of the unilateral placement of the student at IVDU inclusive of 1:1 paraprofessional services and BCBA consultation services, the hearing record lacks evidence to rebut the parents' evidence that the student required the 1:1 paraprofessional services and BCBA consultation services, and there is no basis to reduce the amount of funding requested by the parents on the equitable ground of excessive services.
As a final equitable matter, the district cross-appeals from the IHO's "independent[] find[ing]" that there was no basis to reduce funding based on the amount of religious instruction the student received (IHO Decision at p. 12). The district argues that nine percent of the student's school day was comprised of religious instruction and that federal law forbids States from paying for any "religious worship, instruction, or proselytization" (Answer and Cross-Appeal ¶ 12, 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 "proportionate amount of time the [s]tudent spent receiving religious instruction during the school day should be weighed as a factor supporting a proportionate tuition reduction" and cites Doe v. East Lyme Board of Education in support of this proposition (2012 WL 4344304 [D. Conn. Aug. 14, 2012], 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, in that case, the unilateral placement was found to be inappropriate because the school did not provide special education supports and the student spent a substantial amount of time receiving religious education (E. Lyme, 2012 WL 4344304, at *19). However, here, as described above, IVDU provided an appropriate program for the student and the district concedes that, at most, the purported religious instruction consisted of nine percent of the student's school day during classes identified as prayer and holidays/customs class (see Parent Exs. E; K ¶ 30).
The district has not identified another legal basis for a reduction of tuition funding based on the religious instruction provided at IVDU, and, as discussed in other matters, 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, e.g., Application of a Student with a Disability, Appeal No. 25-022; see also 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)]).
Accordingly, the IHO was correct in his determination that direct funding for the cost of the student's attendance at IVDU was not precluded by the Establishment Clause of the First Amendment, by any federal or State regulation, or by the State's Constitution according to the 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 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, the parents are entitled to reimbursement or direct funding for the full cost of the student's tuition.
C. Special Transportation Services
The parents allege the IHO erred by not addressing their request for special transportation. However, the IHO did address transportation and found that the parties agreed that the special transportation provided by the district was appropriate for the student and that there was "no justiciable issue" to be addressed (IHO Decision at p. 11). The parents indicate in their request for review that the student was receiving transportation to and from school during the 2024-25 school year and that the district conceded it was, in fact, providing transportation to the student. However, the parents appear to claim that the district could cease providing the services absent a writing such as an IEP obligating the district to provide the transportation. This claim is entirely speculative. The evidence shows that the parents requested special transportation in their August 15, 2024, 10-day notice letter to the district and that the district began providing special transportation services in September 2024 (Tr. p. 60; Parent Ex. J). The evidence shows that the attorney for the parents indicated that the district was providing appropriate transportation for the student and she had "no reason to believe" that transportation would be discontinued during the 2024-25 school year (Tr. p. 59). There was no evidence presented during the impartial hearing or on appeal to lead the undersigned to believe that the transportation services being provided by the district would cease. Accordingly, it appears that the parents have already received their requested relief for the district to provide special transportation. The IHO did not err in declining to consider the parents' claims related to special transportation services.
VII. Conclusion
In summary, the IHO erred in finding that the parents did not meet their burden to prove that appropriateness of the student's unilateral placement, which consisted of the student's attendance at IVDU with the support of a 1:1 paraprofessional and BCBA behavior consultation services. The IHO correctly determined in the alternative that equitable considerations did not warrant a reduction in the amount of tuition funding awarded to the parents. Lastly, the IHO did not err in declining to address the parents' request for special transportation.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision dated January 6, 2025, is modified by reversing those portions which found that the parents did not meet their burden to prove the appropriateness of the student's unilateral placement at IVDU, including 1:1 paraprofessional services and BCBA behavior consultation services, for the 2024-25 school year, and which denied the parents' request for district funding for the costs of the unilateral placement; and
IT IS FURTHER ORDERED that the district shall fund the cost of the student's tuition at IVDU for the 2024-25 school year, including the cost of a 1:1 paraprofessional and BCBA behavior consultation services, in the total amount of $145,100.
Footnotes
[1] The hearing record includes two transcripts that are not consecutively paginated. A prehearing conference was held on October 9, 2024, and the impartial hearing was conducted on December 20, 2024. Both transcripts begin with page 1. To the extent it is necessary to cite to the transcript for the October 9, 2024 prehearing conference, it will be cited by the date and corresponding page number (see Oct. 9, 2024 Tr. pp. 1-6). All other transcript citations in this decision refer to the impartial hearing held on December 20, 2024 (see Tr. pp. 1-63).
[2] According to the parents, the last IEP was developed for the student on March 14, 2023 for the 2023-24 school year (Parent Ex. L ¶ 7). The parties do not dispute that the student was eligible to receive special education services during the 2024-25 school year.
[3] IVDU has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d]; 200.7).
[4] The head of IVDU signed the tuition contract on September 4, 2024 (Parent Ex. B at p. 1).
[5] The hearing record includes a description of the "Behavior Consultation Services" provided by the BCBA (Parent Ex. G). Among the services to be provided by the BCBA were conducting behavior assessments to identify the student's problematic behaviors and their causes, designing an individualized behavior intervention plan "aimed at teaching [the student] more appropriate behaviors,' overseeing the implementation of the plan and working with the student's teacher and paraprofessional to "ensure consistent, effective delivery" (id.).
[6] The IHO also addressed the parents' claims arising under section 504 of the Rehabilitation Act of 1973 (section 504), 29 U.S.C. § 794(a) and found that the parents did not identify any specific regulatory requirement under section 504 that was not subsumed under the IDEA and that would merit separate analysis and discussion (IHO Decision at p. 14).
[7] The parents also allege the IHO failed to render a well-reasoned decision based on the fact that the December 20, 2024 impartial hearing transcript was not generated and transmitted to the IHO and the parties until January 14, 2024, after the IHO rendered his decision. State regulations provide in relevant part that the "decision of the [IHO] shall set forth the reasons and the factual basis for the determination" and "shall reference the hearing record to support the findings of fact" (8 NYCRR 200.5[j][5][v]). State regulations further require that an IHO "possess knowledge of, and the ability to conduct hearings in accordance with appropriate legal practice and to render and write decisions in accordance with appropriate standard legal practice" (8 NYCRR 200.1[x][4][v]). While not defined by regulation, citations to the hearing record and to applicable law and application of that law to the facts of the case are generally considered to be the norm in "appropriate standard legal practice" and should be included in any IHO decision. With that said, it does not offend State regulation for an IHO to draft a decision with citations to the documentary evidence and references to testimony presented without specific transcript cites where a written transcript of the hearing had not yet been completed, particularly where, as here, the testimony was not extensive, taking place on one date, and the IHO's decision was issued not long after the hearing date (see 8 NYCRR 200.1[x][4][v]).
[8] Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). The parents submit a January 25, 2025 IVDU progress report and a January 25, 2025 BCBA report to be considered as additional evidence. The district objects to the admission of such exhibits. A review of both documents reveals that they were not available at the time of the impartial hearing. Although the documents were not available at the time of the impartial hearing, I find both reports are unnecessary to render a decision in this matter as the evidence before the IHO was sufficient to demonstrate the appropriateness of the student's unilateral placement.
[9] 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).
[10] State regulations no longer define the term "paraprofessional," as the term "paraprofessional" was replaced with the term "supplementary school personnel" (see NY Reg, June 25, 2014 at 85-86). Supplementary school personnel "means a teacher aide or a teaching assistant" (8 NYCRR 200.1 [hh]). A teaching assistant may provide "direct instructional services to students" while under the supervision of a certified teacher (8 NYCRR 80-5.6 [b], [c]; see also 34 CFR 200.58 [a][2][i] [defining paraprofessional as "an individual who provides instructional support"]). A "teacher aide" is defined as an individual assigned to "assist teachers" in nonteaching duties, including but not limited to "supervising students and performing such other services as support teaching duties when such services are determined and supervised by [the] teacher" (8 NYCRR 80-5.6 [b]). State guidance further indicates that a teacher aide may perform duties such as assisting students with behavioral/management needs ("Continuum of Special Education Services for School-Age Students with Disabilities," at p. 23, Office of Special Educ. [Nov. 2013], available athttps://www.nysed.gov/sites/default/files/programs/special-education/continuum-of-special-education-services-for-school-age-students-with-disabilities.pdf).