STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-342
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances: Liz Vladeck, General Counsel, attorneys for petitioner, by Michael Gindi, Esq.
The Law Firm of Tamara Roff, PC, attorneys for respondents, by Leslie Bradshaw, 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 district) appeals from a decision of an impartial hearing officer (IHO) which ordered it to fund the respondents' (the parents') son's tuition at the Darchai Menachem School for Boys (Darchai Menachem) for the 2024-25 school year. The 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
A CSE convened on May 13, 2024, to conduct the student's annual review and to develop an IEP for the student for the 10-month 2024-25 school year (Dist. Ex. 1). Finding the student eligible for special education as a student with autism, the May 2024 CSE recommended the student receive integrated co-teaching (ICT) services in math, English language arts (ELA), sciences, and social studies and related services consisting of one 30-minute session per week of group counseling, three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy (id. at pp. 26-27).[1] In addition, the May 2024 CSE recommended four 60-minute sessions per year of group parent counseling and training (id. at p. 27).
In an August 20, 2024 letter to the parents, the district identified the assigned public school site at which the recommended services included in the student's May 2024 IEP would be provided (Dist. Ex. 3 at p. 1). In an August 26, 2024, letter to the district, the parents shared their concerns regarding the May 2024 CSE's recommendations for the student and that they needed more information about the assigned public school site (Parent Ex. B at p. 1). The parents advised the district that they were not waiving their right to an appropriate public school placement but could not enroll the student at the assigned school until they determined whether it could implement the student's IEP (id. at p. 2). Therefore, the parents stated they were placing the student at Darchai Menachem to start the 2024-25 school year and, in the event their concerns were not addressed, they would be seeking public funding for the unilateral placement (id.). [2]
On September 5, 2024, the parents executed an enrollment contract with Darchai Menachem for the 2024-25 school year (Parent Ex. H at pp. 1-3).
In a September 23, 2024 letter to the district, the parents again shared their disagreement with the recommendations contained in the May 2024 IEP, as well as with the alleged lack of information about the assigned public school site for the 2024-25 school year (Dist. Ex. 10 at pp. 2-3). As a result, the parents notified the district of their intent, in the absence of an appropriate IEP and placement, to unilaterally place the student at Darchai Menachem for the 2024-25 school year and seek public funding for the costs of the student's tuition (id. at pp. 2-3).
A. Due Process Complaint Notice
In a due process complaint notice dated October 4, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A). Among other allegations, the parents argued that the May 2024 CSE lacked a qualified district representative, failed to conduct sufficient evaluations of the student, failed to adequately consider reports from the student's current teachers and providers, predetermined the student's program, and precluded the parents from meaningful participation (id. at pp. 2-3). The parents further argued that the May 2024 IEP failed to adequately address the student's academic, social/emotional, and behavioral needs, failed to provide transitional support services for the student, failed to include a behavior intervention plan (BIP), and contained insufficient, unmeasurable, and vague goals (id. at pp. 3-4). The parents also alleged that the district did not adequately address their inquiries about the assigned public school, and, based on the information provided, the assigned school was inappropriate for the student (id. at pp. 4-5). As relief, the parents sought funding from the district for the student's tuition at Darchai Menachem for the 2024-25 school year (id. at p. 5).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 17, 2025 and concluded that same day (Tr. pp. 26-195).[3] In a decision dated April 29, 2025, the IHO found that the district did not meet its burden to show that it offered the student a FAPE for the 2024-25 school year, that Darchai Menachem was an appropriate unilateral placement, and that equitable considerations supported the parents' requested relief (IHO Decision at pp. 2-7).
In her decision, the IHO found that, by declining to present testimony explaining the relevance of its documentary evidence, the district failed to "provide a 'cogent and responsive explanation' that the [d]istrict offered [the student] a program and services that were 'reasonably calculated to enable the child to make progress appropriate in light of his circumstances'" (IHO Decision at p. 3). The IHO determined that the educational/clinical supervisor from Darchai Menachem "credibly testified" that the May 2024 IEP was insufficient to meet the student's needs because it did not address the student's "rigid thinking, attention difficulties, social-emotional challenges and executive functioning deficits and his need for a highly structure[d] small-group setting with individualized instruction for him to be able to perform academically" (id.). Ultimately, the IHO found that the district failed to meet its burden to prove that it offered the student a FAPE for the 2024-25 school year because it presented no witness testimony at the hearing (id.).
Regarding the unilateral placement, the IHO determined that the parents met their burden to demonstrate that Darchai Menachem was appropriate (IHO Decision at pp. 4-5). The IHO found that the program at Darchai Menachem was "reasonably calculated to [enable the student] to receive educational benefit and make progress, and met [the s]tudent's unique needs" (id. at p. 5). Regarding equitable considerations, the IHO found that the parent credibly testified about her efforts to cooperate and collaborate with the district and that the district offered no evidence or testimony demonstrating the parents were not cooperative (id. at p. 6). Furthermore, the IHO found that the Establishment Clause of the First Amendment did not warrant a reduction in the parents' requested relief based on the inclusion of religious instruction in the student's programming (id. at pp. 6-7). Therefore, the IHO ruled that equitable considerations favored the parents being awarded full tuition for the student's attendance at Darchai Menachem for the 2024-25 school year (id. at p. 7).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in finding the unilateral placement appropriate and, even if Darchai Menachem were appropriate, in failing to reduce the awarded tuition to eliminate funding for the religious component of the student's tuition. As relief, the district seeks reversal of the IHO's decision and denial of all tuition funding for the unilateral placement at Darchai Menachem for the 2024-25 school year. Alternatively, the district requests the SRO reduce any tuition award by 9.37 percent to exclude religious programming. [4]
In an answer, the parents argue that the IHO's determinations were correct, and that the IHO's decision should be upheld in its entirety.
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 generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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]). [5]
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
At the outset, the district has not appealed from the IHO's finding that it failed to offer the student a FAPE for the 2024-25 school year and so that determination 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]).
A. Unilateral Placement
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
While not at issue on appeal, a review of the student's needs will provide the necessary context for addressing the issue of whether the parents' unilateral placement was appropriate.
The May 2024 IEP indicated that the CSE used May 2024 reports from the student's providers, a February 2024 educational evaluation, a May 2023 psychoeducational evaluation, [6] and input from the student's teacher and parent in developing the student's IEP (Dist. Ex. 1 at pp. 1-6; see Dist. Exs. 5-9).
According to the May 2024 IEP, the student had received the diagnosis of autism spectrum disorder and demonstrated cognitive skills that were in the average range and academic skills within the "[a]verage to [v]ery [h]igh" ranges (Dist. Ex. 1 at p. 1). The student's first grade teacher shared with the May 2024 CSE that the student had "do[ne] well academically" and "made a lot of progress" during the year (id. at p. 3).
The student's first grade teacher indicated the student had difficulty completing assignments and staying focused; however, the May 2024 IEP further included reporting from the student's OT provider which noted the student's attentional difficulties had undergone "positive transformations" and that interventions incorporating visual prompts and structured activities significantly improved the student's sustained attention and contributed to a more focused learning experience (Dist. Ex. 1 at pp. 3-4).
According to the May 2024 IEP, the student's academic needs included handwriting; counting numbers in the "60s" and "70s"; identifying "higher numbers," beyond 20, in print; determining the value of coins; telling time on an analog clock; subtraction without manipulatives; "grouping numbers with the corresponding object"; "sequencing a story"; reading digraphs and trigraphs; reading long vowels; "sub categorizing words in different groups"; and in comparing and contrasting activities (Dist. Ex. 1 at p. 3).
In the area of speech-language development, the May 2024 IEP stated that, expressively, the student presented with an interdental lisp and struggled to initiate and maintain conversations, often veering off-topic into detailed personal narratives (Dist. Ex. 1 at p. 4). Receptively, the student had difficulty answering "wh" questions, sequencing, and responding to auditory and visual stimuli, necessitating direct and intentional efforts to gain his attention (id.).
Socially, the May 2024 IEP indicated the student was "eager to please" and had made friends at school, but that he demonstrated rigid thinking (Dist. Ex. 1 at p. 5). Specifically, the May 2024 IEP included that the student required assistance "problem-solving" and "figuring things out," was unable to engage in "reciprocal conversations," tended to "get stuck" during activities, needed help with transitions, and was easily distracted (id.). Additionally, the IEP included that a previous social/emotional evaluation showed the student exhibited a number of at-risk behaviors specifically in the areas of anxiety, hyperactivity, and withdrawal that were consistent with his "ASD diagnosis" (id. at p. 1).
In terms of physical development, the May 2024 IEP included that the student had delays with fine and gross motor functioning (Dist. Ex. 1 at p. 6). The IEP indicated that the student demonstrated difficulty with fine motor coordination, hand strength, and overall dexterity (id.). In addition, as described in the May 2024 IEP, the student had difficulty with his proprioception and neuromuscular control systems (id.). According to the May 2024 IEP, the student demonstrated low tone, decreased muscle strength, and difficulty with overall coordination (id.).
The student's needs as described in the May 2024 IEP were similar to those described by the student's teachers and providers within the student's progress reports from the 2024-25 school year (compare Dist. Ex. 1 at pp. 2-6, with Parent Exs. J-N). Additional needs identified in fall 2024, within these progress reports, included that the student was reluctant to take initiative and "quick to fatigue," had developed "rigid routines," and had difficulty with time management, identifying odd and even numbers, "turn-taking" during group reading activities, following verbal instruction and multi-step directions, and in understanding the function of objects (Parent Exs. J at pp. 1, 3, 7; M at p. 1).
2. Specially Designed Instruction and Progress
According to a program description included in the hearing record, Tomim was "a special education program" within Darchai Menachem designed to address the needs of students with behavior issues, learning disabilities, and communication and/or social challenges (Parent Ex. D at p. 1). The program description included that a combination of individual and small group instruction was tailored to each student's individual needs and that support was provided for the students both within the classroom in small groups, as well as outside the classroom in specially designed work areas (id.). In his affidavit, the supervisor testified that the program provided "small class sizes" of up to five students and one teacher that allowed for "very individualized instruction" and added that, if needed by a student, they developed personalized behavioral plans (Parent Ex. O ¶¶ 4, 5). [7]
According to the program description, teachers were either certified, or received direct supervision from a certified teacher, and all related service providers and Board Certified Behavior Analysts (BCBAs) were fully licensed (Parent Ex. D at p. 2). The program description included that small group learning was used for all academic classes and that one-to-one ELA and math specialists were provided as needed to allow for differentiated instruction (id. at p. 1). Further, the program description indicated that students were provided with enrichment activities including art, music, physical education, and "interactive field trips" (id. at p. 2). According to the supervisor, the students in the Tomim program were provided "mainstream" opportunities in classes of up to 14 students and occurred during mealtimes, prayer, and breaks (Parent Ex. O ¶¶ 5, 18; see Parent Ex. D at p. 1).
According to the supervisor, the student's Tomim classroom included five students with one teacher in the morning, who has "a bachelor's degree" and another teacher in the afternoon who was a certified special education teacher (Parent Ex. O ¶¶ 16, 17). In addition to his classroom teachers, the supervisor testified that the student received an hour of 1:1 instruction with an ELA and math specialist (specialist teacher) who employed "ABA techniques" for both subjects (Parent Ex. O ¶ 17).
Turning to the student's specific program, his individual second grade schedule included small group instruction for handwriting, second language, bible studies, counseling, literacy, social groups, math, history, STEAM,[8] general knowledge, and science (Parent Ex. E). In terms of related services, the student's schedule indicated that he received two 30-minute sessions per week of individual OT, one 30-minute session per week of individual counseling, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual PT (id.).
According to the supervisor, during activities on the schedule labeled "social activities" and "social groups," the program addressed "interactions, rules, behaviors, conversation skills, category skills, [and] life skills" (Tr. p. 119). The supervisor further testified that these classes offered an initial lesson on a new skill, such as "how to have a reciprocal conversation," and then there was an opportunity for the students to practice that skill (Tr. pp. 119-20).
To address the student's math needs, the November 2024 special education progress report indicated that the specialist teacher used visual number lines, games that offered practice with moving forward and backward, and "[r]eal-life" word problems and "money-related scenarios," which served to connect math to "real-world" situations (Parent Ex. J at pp. 2-3). The progress report also indicated that during math instruction the student's specialist teacher used breaks, praise, sand timers, and presented a limited number of problems at a given time to support the student's learning (id. at p. 5). The November 2024 progress report included strategies the specialist teacher used with the student during reading tasks (id.at pp. 7-8). Specifically, to address the student's difficulties with categorizing words and finding certain phonemic patterns (like digraphs), the specialist teacher provided choices when sequencing tasks and "color-coding" for pattern identification (id.). To address the student's challenges with turn-taking during group reading activities, the specialist teacher set "clear expectations" regarding who was to read next and used redirection to guide the student back to the main discussion (id. at p. 8). According to the November 2024 progress report, the specialist teacher addressed the student's writing needs through reinforcing proper pencil grip, using colored lines to reinforce "size consistency," and providing the student with positive reinforcement for his "effort and progress" (id. at p. 10). Further, the specialist teacher indicated she chunked tasks and used visual schedules for organization, provided prompts and multiple choices for problem-solving, and encouraged the student to ask for help when needed coupled with reinforcement when he independently sought assistance (id. at p. 12). In terms of progress, the November 2024 special education report described the student's goal achievement in math, reading, and writing (id. at pp. 2-6, 8-11).
The November 2024 speech-language progress report indicated the student was working on producing the /s/ and /z/ sounds in initial and final position of words, answering "wh" questions, sequencing skills (including calendar events), remaining on topic in conversation, increasing flexibility by engaging in nonpreferred activities, and enhancing social communication skills (Parent Ex. M at p. 3). The November 2024 progress report indicated that the student had improved in his ability to sequence events, answer basic "wh" questions, initiate conversational turns, and greet peers and adults (id. at pp. 2, 4).
The November 2024 counseling report stated that sessions focused on helping the student manage frustration, improve social engagement, and build coping strategies (Parent Ex. N at p. 1). The report described the student's improvement in skills, specifically "notable progress" in emotional regulation and problem-solving (id. at p. 2). In addition, regarding the student's social needs, the supervisor testified that the student's "rigidity" sometimes interfered with his ability to attend class, such as when he demonstrated a "tantrum" (Tr. pp. 134-35). The supervisor testified that the program addressed this issue through the development of "a very specific schedule" geared toward the student as well as the use of "task analysis," in which they broke down the skill into "very, very small parts" (Tr. pp. 134-35).
As for motor skills, a November 2024 OT progress report stated the student worked toward goals that addressed fine motor precision, focus during academic tasks, and managing sensory stimuli, and indicated that the student's handwriting, attention span, and use of sensory tools had improved, but noted that he needed to work on his "consistency and cutting precision" as well as use of strategies during "moments of sensory overload" (Parent Ex. L at pp. 1-2). The December 2024 PT progress report indicated that sessions addressed needs in areas of proprioception and neuromuscular control systems, balance, and coordination and stated that the student made progress with his proprioceptive skills, balance, coordination, "certain functional movement patterns," and being "more willingly engaged" with his peers during recess (Parent Ex. K at pp. 1-3).
The supervisor testified that the student "made notable progress in all areas, including emotional regulation, problem-solving, self-advocacy, and academic skills" (Parent Ex. O ¶ 55). The parent testified that the student had made progress during the year in that he was "way more social" and more interested in "other's feelings" (Tr. p. 95). The parent also described that the student was more flexible, was better able to transition between activities, and had improved with his ability to stay seated and focused on a task (Tr. pp. 96-97). The parent shared that the student demonstrated pride in his work, such as a paragraph he had written (Tr. pp. 97-98).
Turning to the district's specific arguments, with respect to testimony of the Darchai Menachem supervisor, the IHO found the witness "credible based on his background, training, experience, [and] knowledge of Student and Student's program at School," further noting that the supervisor's testimony was corroborated with the parent's testimony and the documentary evidence (IHO Decision at p. 5). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). The district points to the supervisor's difficulty answering certain questions posed during the impartial hearing regarding the school's accreditation or whether the school offered "an equivalent time of mathematics education as he would in a public school" (see Tr. pp. 125, 127).[9] The supervisor indicated it was "not part of [his] role" to know the answers to the questions about accreditation and, as to equivalency, clarified that the school aligned the student's instruction "with the next gen[eral education] standard so that he receive[d] an adequate amount to allow him to progress" (id.). Even if the district could establish that the supervisor should have been able to answer the questions posed more clearly, this is insufficient to overturn the IHO's determination that the supervisor, overall, testified credibly. The district also claims that the supervisor offered inconsistent testimony with respect to the characterization of a Bible Studies class as purely religious; however, review of the testimony does not support the district's claim. In his affidavit, the supervisor indicated that the "pure religious instruction" in the student's schedule consisted of "Prayers and Bible Study" but that "Bible Study" offered broader "academic and practical benefits" such that it was not considered "to be purely religious instruction" (Parent Ex. O ¶ 39). Consistent with this, during the impartial hearing, the supervisor testified that, although the religious text was used during the class, there was also a focus on "comprehension and inferencing" and perspective (Tr. pp. 124-25). While the affidavit was not phrased as clearly as it could have been, this is not enough to impugn the supervisor's credibility.
In its appeal, the district also argues that the student's program did not address his academic needs, specifically claiming that it did not provide sufficient academic instruction, particularly in math. The supervisor clarified during the hearing that the math class identified on the student's schedule described only that period when he learned together with the rest of his class, which consisted of a group of five (Tr. p. 114). The supervisor testified that the student received math instruction during his math class that took place once per week for 30-minutes, but also during a STEAM class that occurred two days per week and during "1:1 times" that took place with "his specialist" (Tr. p. 113). The supervisor testified that the student's instructors addressed mathematics at "those times" based upon consultation with the supervisor and the teachers and the team "as much as he needs during those times" (Tr. pp. 113-14). The supervisor indicated that the time with his specialist targeted his "specific needs" in math and ELA (Tr. pp. 114, 133).
As a final matter, the district argues that the proportion of the student's schedule devoted to religious instruction undermines the appropriateness of the unilateral placement. While an award of funding for private school tuition at a religious school is not precluded (L.M. v. Evesham Twp. Bd. of Educ., 256 F. Supp. 2d 290, 295-98 [D.N.J. 2003]), the religious components of a school's program may be relevant to the question of appropriateness (J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 656-57 [S.D.N.Y. 2011] [finding the religious unilateral placement inappropriate because the staff had no experience educating students with disability, individualized sessions appeared to be an extension of the religious education, and the "educational offering" at the school was "tailored to provide an intensely religious education to typically developing students" with a format that the student could not access given his disability]). In the present matter, however, the staff had appropriate experience and qualifications to address the student's special education needs, services and individualized sessions focused on the student's areas of need, and, even if the district's calculation that "9.37%" of the student's schedule was devoted to religious instruction was correct, this is not an instances where the school day consisted "mostly of prayer, Bible study, and storytelling" pertaining to religious education (see J.G., 777 F. Supp. 2d at 656).
Rather, based on the totality of the circumstances, the evidence in the hearing record supports the IHO's conclusion that Darchai Menachem was an appropriate unilateral placement for the student. The student received 1:1 and small group instruction, the school developed annual goals for the student under which he was progressing, and his teachers adapted instruction to provide the student with supports (Parent Exs. J at pp. 2-8; O ¶¶ 8, 24-28).[10] Together, these factors all support the appropriateness of the parents' unilateral placement of the student and indicate that it was reasonably calculated to enable the student to receive educational benefits.
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"]).
Here, the district argues that funding for religious instruction violates the Establishment Clause of the First Amendment, federal regulation, and the State Constitution.
As explained in previous decisions involving the same question, 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. 24-160; Application of a Student with a Disability, Appeal No. 24-056; 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. Catalina 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., 256 F. Supp. 2d at 303 [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];[11] 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. at 818, citing Lemon v. Kurtzman, 403 U.S. 602 [1971]).[12] Focusing on the indirect aid and individual choice factors discussed in prior 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 ¶¶ 11-12, citing 34 CFR 76.532). The district's argument is flawed in several respects. First, the parties seeking equitable relief for the denial of a FAPE and who incurred the liability for the student's unilateral placement as a result are 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 parents to fix it with a self-help remedy and bear the risk that they might not succeed in their 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, 509 U.S. at7 n.7).
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).
As noted above, it is uncontroverted that the district failed to offer the student a FAPE for the 2024-25 school year. Based on this, the parents could pursue remedial relief and under the IDEA, could place the student at a school of their 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 a finding that Darchai Menachem was an appropriate unilateral placement for the student for the 2024-25 school year. The State and federal laws cited by the district operate to preclude the district from choosing sectarian methods to carry out its public education functions, but those authorities do not impede parents from seeking remedial relief by means of a sectarian institution when the district has failed in its public education responsibilities. Instead, if the district feels strongly in circumstances such as this that sectarian activities should not be funded as remedial relief, the district should ensure that it complies with the IDEA in the first place.
Accordingly, I find that the IHO did not err in finding that the Establishment Clause does not warrant a reduction in the amount of direct funding based on the amount of religious instruction provided at Darchai Menachem (IHO Decision at pp. 6-7). The IHO also found the parents cooperative (id. at pp. 5-6). The district has not appealed the IHO's determination that the parents were cooperative, therefore this determination has become final and binding on the parties (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z., 2013 WL 1314992, at *6-*7, *10). Accordingly, there is no basis in the hearing record to overturn the IHO's determination that equitable considerations weighed in favor of the parents and no reduction of the parents' requested relief was needed.
VII. Conclusion
In summary, the evidence in the hearing record supports the IHO's findings that Darchai Menachem was an appropriate unilateral placement and that equitable considerations supported an award of tuition funding. I have considered the parties' remaining contentions and find I need not address them in light of my findings herein.
THE APPEAL IS DISMISSED.
Dated: Albany, New York
May 20, 2026 SARAH L. HARRINGTON
Footnotes
[1] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] The Commissioner of Education has not approved Darchai Menachem as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] Prehearing and status conferences were held on December 30, 2024, January 13, 2025, and February 3, 2025 (Tr. pp. 1-25).
[4] The district also requests that the SRO excuse its late filing of the notice of intention to seek review (see 8 NYCRR 279.2[b]). In the answer, the parents generally assert that they were prejudiced by the district's late service of the notice of intention to seek review and request that the district's appeal be dismissed due to the late service. While such a defect by itself can cause disruptions in the State-level review process, it rarely results in outright dismissal of a party's pleading, especially when there is no showing of any prejudice (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962] [finding "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored"]). Here, the district submitted a certified hearing record with its request for review and the parents were able to answer the district's allegations. Thus, in the exercise of my discretion, I decline to dismiss the district's request for review on the basis that it served the notice of intention to seek review late.
[5] 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).
[6] The May 2023 psychoeducational evaluation, referenced in the May 2024 IEP, was not included in the hearing record (see Tr. pp. 1-189).
[7] The program description indicated that Tomim offered "a school-wide positive behavior modification system" that included personal behavior plans, consistent data collection, and feedback and focused on the development of appropriate social skills (Parent Ex. D at p. 1). In addition, the program description stated that social skills and executive functioning skills, such as students' ability to engage in conversation, interpersonal relationships, and decision-making strategies, were addressed by the program (id. at p. 2).
[8] The supervisor clarified during the hearing that "STEAM" referred to science, technology, ELA, arts and mathematics, or "a modern version of the STEM program" (Tr. p. 117). The supervisor indicated that the STEAM program included practical application of math and science (Tr. pp. 117, 118).
[9] In pursuing this line of questioning, the district appears to be circling the question of whether the private school provides a sound basic education to its students, which is not a determination which can or should be made in this forum that resolves special education disputes only (see Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]; see also Parents for Educ. & Religious Liberty in Schs. v. Young, 44 N.Y.3d 477, 486 [2025]). For purposes of the district's appeal, the issue is whether the unilateral placement was designed to meet the student's needs, not whether the private school offered instruction substantially equivalent to a public school. That the unilateral placement may not have perfectly covered every area of the public school curriculum does not necessarily mean that appropriate special education to address the student's disability was not being provided under the Endrew F. standard. A parent need not show that a unilateral placement meets state education standards or requirements and need not show that it furnishes every special service necessary to maximize a student's potential in order to qualify for reimbursement under the IDEA; rather, a parent has the burden to establish that the unilateral placement provides specially designed instruction to meet the student's unique needs, as well as support services as necessary to allow the student to benefit from instruction (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016] [reversing the administrative hearing officers who found that the related services at a unilateral placement were inadequate when the totality of the evidence demonstrated it was appropriate and would enable the student to make progress]; Frank G., 459 F.3d at 364). In any event, as set forth below, the evidence in the hearing record indicates that Darchai Menachem offered more instruction in mathematics than identified as such on the student's schedule.
[10] While 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), it is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (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]).
[11] In L.M. v. Evesham Tp. Bd. Of Educ., 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).
[12] 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. 507, 510 [2022] [holding that the Supreme Court "long ago abandoned Lemon and its endorsement test offshoot"]).