Impartial Hearing Decision

CASE NUMBER: 569047 NYC: 223854

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] District Rep DOE 06/16/22 (V)

[CONFIDENTIAL] Attorney PARENT 07/19/22 (V)

[CONFIDENTIAL] District Rep DOE 07/19/22 (V)

[CONFIDENTIAL] Attorney PARENT 08/16/22 (V)

[CONFIDENTIAL] District Rep DOE 08/16/22 (V)

[CONFIDENTIAL] Attorney PARENT 10/07/22 (V)

[CONFIDENTIAL] District Rep DOE 10/07/22(V)

[CONFIDENTIAL] Attorney PARENT 11/22/22 (V)

[CONFIDENTIAL] Parent PARENT 11/22/22 (V)

[CONFIDENTIAL] Witness PARENT 11/22/22 (V) [CONFIDENTIAL] District Rep DOE 11/22/22 (V)

[CONFIDENTIAL] Attorney PARENT 12/20/22 (V)

[CONFIDENTIAL] Parent PARENT 12/20/22 (V)

[CONFIDENTIAL] District Rep DOE 12/20/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 01/1822 PARENT 07 pages

B. IESP 12/23/21 PARENT 18 pages

C. Ten-Day Notice 01/18/22 PARENT 04 pages

D. IESP 05/06/20 PARENT 09 pages

E. Affidavit of Parent N/A PARENT 02 pages

F. Affidavit of REDACTED N/A PARENT 04 pages

G. Progress Report 12/21/21 PARENT 04 pages

H. Speech Progress Report 12/21/21 PARENT 03 pages

On. I Provider Credentials N/A PARENT 02 1 Services Records for N/A DOE 04 The Student May 4, 2022, I was appointed the Impartial Hearing Officer ("IHO") to conduct an. impartial hearing pursuant to the Individuals with Disabilities Education Act ("IDEA")

20. USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 16, 2022, July 19, 2022, August 16, 2022, October 7, 2022, November 22, 2022 and December 20, 2022. A list of the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint ("DPC") filed by the student's Parent's attorney on or about January 18, 2022, and carried under New York City ("NYC") Case No. 241843. The Parent herein alleges that the student was denied a "free and appropriate public education" ("FAPE") for the 2021-2022 school year DOE in. that the parent alleges that the DOE failed to implement the special education services recommended on the students IESP. The December 23, 2021 IESP includes: SETSS, Direct Service, Group Service, Yiddish, 5 periods per week; Counseling Services, Individual Service, Yiddish, 1x30 minutes per week; Speech-Language Therapy, Individual Service, Yiddish, 2x30 minutes per week; Occupational Therapy, Individual Service, English, 1x30 minutes per week; Physical Therapy, Individual Service, English, 1x30 minutes per week; and Speech-Language Therapy, Group Service, Yiddish, 1x30 minutes per week. Parent filed a 10 day notice letter on January 18, 2022, and the District failed to provide any proof that they responded to parents' letter. (C)

At. the impartial hearing, the Parent seeks the following relief: (a) SETSS services and speech language therapy by an outside provider at the fair market rate for the 2021-2022 school year as per the students IESP. The Parents' DPC having been duly filed pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final "impartial hearing" before this IHO on November 22, 2022, and this decision being made not on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f],and

THE PARENT'S CASE

The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing date, the DOE crossed both affiants. The Parent also submitted (9) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

DOES' DEFAULT

The DOE submitted one document into evidence. The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge ('ALJ") properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer's president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity "to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3)." (Id. at 585, 488 N.Y.S.2d at 179) The DOE did not present a case-in-chief. The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent and the District to be credible and uncontroverted in this case. I find the parent's testamentary evidence to be credible. As noted above, the DOE's failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the 401 pages

at. hearing, the hearing, the hearing process essentially becomes an "inquest" as to the appropriate relief. The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-22 school year and that the Parent may be entitled to the proven relief she has requested. The Parent witness testified via affidavit, as to the services that the Agency has provided to the student for the 2021-2022 school year. The witness further testified, that "I am the educational director at ("Agency").

1. In my role as Educational Director of the Agency, I screen and hire all of our special education teachers, supervisors, consultants and trainers. I also research the latest techniques for teaching children and make sure that we have the supplies needed to meet our students' needs. I communicate with the parents to better understand their child's learning needs. DOE

2. During the intake process, I review prospective student evaluations, progress reports, and other clinical materials to determine whether our agency can provide appropriate services. After conducing this extensive review, I assign an appropriate educator to the student. I ensure that each teacher assigned has the expertise needed for that specific student. DOE

3. In my role as an Educational Director, I work closely with the supervisory team to ensure that the needs of every student and teacher are being met. 4. I also visit the schools where our services are provided and collaborate with the providers and school personnel to address any needs and concerns. DOE

5. The Agency charges $175 per hour of SETSS and $250 per hour of Speech-Language Therapy. DOE

6. This rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs. 7. The Agency offers professional development training to its providers. We focus these trainings DOE on. special education teaching methods and research-based teaching strategies. 8. I am familiar with the student named REDACTED as they currently receive special education services with the Agency.

9. The Agency provides 5 hours per week of Special Education Teacher Support Services ("SETSS") and 3 x 30 minutes of Speech-Language Therapy to REDACTED for the 2021- DOE

22. school year. The Parent witness testified as follows. 1. REDACTED struggles in many academic and social/emotional areas and requires a lot of extra assistance. I believe that without the extra assistance she will not be able to maintain her mainstream placement. DOE

2. Pursuant to her IESP dated 12/23/2021, REDACTED was mandated on a weekly basis for the following: SETSS, Direct Service, Group Service, Yiddish, 5 periods per week; Counseling Services, Individual Service, Yiddish, 1x30 minutes per week; Speech-Language Therapy, Individual Service, Yiddish, 2x30 minutes per week; Occupational Therapy, Individual Service, English, 1x30 minutes per week; Physical Therapy, Individual Service, English, 1x30 minutes per week; and Speech-Language Therapy, Group Service, Yiddish, 1x30 minutes per week. (F) 3. Despite my best efforts, I was unable to locate a SETSS and SLT provider for REDACTED. I made many phone calls to independent SETSS providers on the list that is published on the DOE website, and none of them were available to service my child at the standard DOE rate. The DOE did not make available any SETSS or SLT provider. DOE

4. I then contacted REDACTED ("Agency") which facilitated SETSS and Speech for REDACTED. DOE

5. The Agency provided 5 hours per week of SETSS and 3 x 30 minutes per week of Speech-Language Therapy for the duration of the 2021-2022 school year. DOE

6. I signed a contract which obligates me to pay for these services in the event that the DOE does not pay the Agency for services provided. (E) The DOE did cross examine the witness. I find the witness testimony credible.

APPROPRIATENESS OF RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IESP or otherwise engaged in conduct that precluded the development of an appropriate IESP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited compensatory education at an enhanced rate. (SRO No. 04-049); and Whereas, the DOE agrees with the services that are mandated for the student pursuant to their IESP (T-24) Whereas, the DOE failed to implement their own recommendations pursuant the students IESP; Whereas there being nothing in the record that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the DOE has failed to meet its burden under the law and the Parent's submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas the parties' oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and Whereas the DOE's default constitutes a concession of a denial of FAPE and the completely uncontroverted testamentary evidence submitted by the Parent and annexed hereto supports the Parent's request for relief; and Now, therefore, it is hereby

ORDERED upon the DOE's default and its tacit concession of denial of FAPE, for the school years of 2021-2022 and upon the DOE's receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student's SETSS services and speech language therapy by an outside provider at the fair market rate for the 2021-2022 school year as per the students IESP.

ORDERED that any of the other relief sought by the Parent not addressed by this "Final Order" is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO's authority or unsupported by the record.

Sharifa Milena Nasser DATED: Queens, New York Sharifa Milena Nasser- IHO February 16, 2023 DOE

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)