Impartial Hearing Decision

CASE NUMBER: 569089 NYC: 223893

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 06/14/22 (V)

[CONFIDENTIAL] Attorney PARENT 08/18/22 (V)

[CONFIDENTIAL] DOE Representative DOE 08/18/22 (V)

[CONFIDENTIAL] Attorney PARENT 09/14/22 (V)

[CONFIDENTIAL] DOE Representative DOE 09/14/22 (V)

[CONFIDENTIAL] Attorney PARENT 10/13/22 (V)

[CONFIDENTIAL] Attorney PARENT 11/17/22 (V)

[CONFIDENTIAL] DOE Representative DOE 11/17/22 (V)

[CONFIDENTIAL] Attorney PARENT 01/13/23 (V)

[CONFIDENTIAL] Parent PARENT 01/13/23 (V)

[CONFIDENTIAL] DOE Representative DOE 01/13/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial hearing 01/20/22 PARENT Request 2021 to 2022 19 pages

B. DOE Acknowledgment of 01/21/22 PARENT 02 Receiving the Impartial Hearing Request

C. Letter from Parent to 06/04/21 PARENT REDACTED 07 pages

D. Ten-Day Notice 08/17/21 PARENT 04 pages

E. Letter from Parent to 07/13/21 PARENT REDACTED 06 pages

F. DOE Response to 09/08/21 PARENT Document D 01 pages

G. Letter to REDACTED 10/04/21 PARENT 05 pages

H. Email from REDACTED 01/24/22 PARENT To Parent 02 pages

I. Email correspondence 03/01/22 PARENT Regarding the DOE Response To document A 13 pages

J. Email from the DOE 05/05/22 PARENT Advising of the Appointment Of an IHO 01 pages

K. Notice of Appearance 07/15/22 PARENT 01 pages

L. Notice of Appearance 07/15/22 PARENT 01 pages

M. Email from Parent with 04/28/21 PARENT Signed DOE Consent Forms 03 pages

N. REDACTED IEP Annual 05/11/21 PARENT Review Notes 07 pages

O. Email from REDACTED Various PARENT with attached 5/20/21 and 7/8/20 07 pages

P. Prior Written Notice form 5/20/21 Email from 05/27/21 PARENT 07 pages

Q. REDACTED with Attached Prior Written Notice Form Email from 06/18/21 PARENT 13 pages

R. REDACTED with attached Prior Written Notice Form Email from REDACTED 07/01/21 PARENT With Attached 03 pages

U. Transportation Exchange Form Letter from Parent to 05/19/22 PARENT 07 pages

REDACTED

V Email 07/02/22 PARENT 07

REDACTED

and

REDACTED

with Attached Letters

W Email from 07/10/19 PARENT 25

REDACTED

Attached June 2019

REDACTED

Progress Report And Documentation regarding

Need for a Paraprofessional

X Email from Parent to 07/11/19 PARENT 15

REDACTED with Attached

May 2018 Neuropsychological

Reevaluation and 7/11/19 DOE

Consent for Use of Email Form

Y Email from Parent to 06/16/20 PARENT 03

REDACTED

With attached Psychosocial

History

Z Email from Parent to 05/20/21 PARENT 06

REDACTED

With Attached Letter from Pediatrician and completed

Request for medical

Accommodations form

AA Email from Parent to 05/20/21 PARENT 02

REDACTED

With Attached HIPAA

Release Form

BB REDACTED Progress 02/05/21 PARENT 23

Report

CC REDACTED Progress 06/19/21 PARENT 24

Report

DD REDACTED Progress 02/04/22 PARENT 23

Report

EE REDACTED Progress 06/17/22 PARENT 26

Report

FF REDACTED and N/A PARENT 05

Institute Upper School Description

GG REDACTED and N/A PARENT 05

Institute Remote

Learning Information

HH Letter from REDACTED 10/20/21 PARENT 01

Regarding Remote

Learning

II 2021 to 2022 Enrollment 04/29/21 PARENT 02

Agreement

JJ 2021/2022 Attendance 06/17/22 PARENT 01

Card

KK 2021/2022 Weekly N/A PARENT 02

Schedule

LL Affidavit of REDACTED 12/20/22 PARENT 17

MM Affidavit of Parent 01/03/23 PARENT 07

REDACTED

On May 4, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District 01. The Parents filed a Due Process Complaint (“DPC”) on or about January 20, 2022. The case was then waitlisted due to the unavailability of Hearing Officers until May 4, 2022. Impartial hearings were held on June 14, 2022, August 18, 2022, September 14, 2022, October 13, 2022, November 17, 2022 and January 13, 2023. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

On or about May 11, 2021, a CSE meeting was held for the student. The CSE recommended the student be moved from her private school to a Special Class 12+1 in District 75. The Parents allege that the student’s previous Individualized Education Program (“IEP”), is procedurally and substantively flawed and woefully inadequate. (ADPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2021-2022 school years. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. There was no proof submitted by the District that they responded to the Parents 10 day notice letter sent on August 17, 2021. (D) At the impartial hearing, the Parent seeks the following relief:

• Tuition reimbursement for the student’s attendance at the private school for the 2021-2022 school year.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and submitted no documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

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 stated that they would not cross the two affiants. (T-42 ) The Parent also submitted (44) 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 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 and did not controvert the documentary or testamentary evidence submitted by the Parent. (Supra) The credibility of the documentary or testamentary evidence was not rebutted by either party and the evidence is clearly relevant and material to the issues to be determined. I find the evidence submitted by the parent to be credible and uncontroverted in this case. I find the parent’s testamentary evidence to be credible and uncontroverted in this case.

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, 401 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 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 at 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 2021-2022 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE 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)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence concerning the appropriateness of the private school is as follows:

The DOE’s default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2021-2022 school year.

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction and the students has progressed during her time there as per the direct testimony via affidavit by the Assistant Head at the private school. (L)

I am familiar with REDACTED. REDACTED has attended a 10-month program (September through and including June) at REDACTED School since the 2019-2020 school year which, for REDACTED started in September 2019. Prior to the 2019-2020 school year, REDACTED as a student at the REDACTED School. REDACTED as in the 12th-grade at REDACTED School for the 2021-2022 school year. REDACTED is now 18 years old and, for the 2022-2023 school year, is attending REDACTED Transitions Program. All of the information set forth below pertains to REDACTED and her attendance in REDACTED School during the 2021-2022 school year.

10. All of REDACTED.’s head teachers have or are pursuing master’s degrees in special education and hold (or are pursuing) New York State teaching certification.

REDACTED.’s assistant teachers all have bachelor's degrees and many are pursuing masters degrees in education.

11. REDACTED is an independent school for students with a broad range of cognitive and developmental disabilities. The students have a variety of Individuals with Disabilities Act (“IDEA”) disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills.

12. At REDACTED, we value the whole student and we support their growth in all aspects of their lives. REDACTED offers an optional twelve-month program for students with moderate to severe developmental or cognitive disabilities. Our program provides modified academic instruction, programming, vocational training, integrated related services, clinical services, and differentiated instruction within academic content areas.

13. The REDACTED School is a high school program serving grades 9 through ^[12]. REDACTED students have a wide range of learning challenges. The program is departmentalized, meaning that students change classes and teachers throughout the day.

14. At REDACTED, we believe in designing programs for individualized students. We create independence in the school, home, and work environments while preparing students for meaningful and purposeful lives after graduation.

16. For the 2021-2022 school year, REDACTED academic classes consisted of 10 -

38. Based on my knowledge of REDACTED needs and goals, REDACTED was an appropriate placement for her for the 2021-2022 school year. REDACTED provided significantly modified programming to address REDACTED extensive academic needs and integrated her related services into her curriculum to place her learning and acquisition of new skills into a meaningful context.

39. The support provided to REDACTED by REDACTED has allowed her to access the curriculum substantively and beneficially. As set forth above and as more fully detailed in her progress reports, REDACTED made progress during the 2021-2022 school year in becoming more independent, and I believe that this is the result of the individually tailored program that she was provided by REDACTED.

40. It is my understanding that the New York City Department of Education (“DOE”) recommended placing REDACTED into a 12:1+1 special class in its’ District ^[75]. Through my past participation in CSE review meetings with the DOE, personal research, visits to DOE 12:1+1 programs over the years and discussions with colleagues who work and have conducted observations in DOE schools, I have some familiarity with DOE 12:1+1 District

41. This would not be possible with the staffing ratio provided by the 12:1+1 District 75 program that I was told was recommended by the DOE for REDACTED. Additionally, REDACTED related services were integrated into her schedule at REDACTED, providing weekly opportunities for generalization of adaptive skills out in the community.

REDACTED vocational training program provided individualized internship placement and support from a job coach for REDACTED. My general understanding of the 12:1+1

District 75 classes is that they are not departmentalized so students remain in the same classroom with the same teaching team for most subjects, aside from specials. Vocational training in District 75 schools is typically provided to the whole classes at one time.

42. For all of these reasons, I strongly believe that the REDACTED School was an appropriate placement for REDACTED during the 2021-2022 school year. Our team of educators, therapists, and related service providers worked closely together allowing them to be consistent in their support for REDACTED in all domains - social/emotional, academic, adaptive, transitional - and helped her to generalize these skills through school, work, and life. The Parent testified via affidavit on direct as follows:

1. Before the beginning of the 2021-2022 school year in September 2021, I met with the DOE’s Committee on Special Education (“CSE”) on May 11, 2021. Also participating in the meeting were two teachers from REDACTED who knew and worked with REDACTED. During the meeting, I felt that REDACTED, and I were all allowed to express our feelings and thoughts but that what we had to say did not matter to the DOE.

I felt this way because, in response to what we had to say, the DOE-employees at the meeting would say things like we will note your concerns and then insist on moving on as opposed to talking to us about what we had to say and working with us to incorporate our concerns into a learning plan for REDACTED.

2. During the May 11, 2021 CSE meeting, over my objections and the objections of REDACTED, the DOE employees who were present informed us that that they were recommending moving REDACTED from REDACTED, the school she was attending at the time of the meeting, to a 12:1+1 special class in the DOE’s District 75.

3. The DOE employees at the May 11, 2021 CSE meeting further informed REDACTED, and I that REDACTED would be assigned to a specific District 75 school by someone who was not present at the meeting and who, upon information and belief, did not know REDACTED.

4. In late-May early-June 2021, I received a package of documents from the DOE that bore the title “Prior Written Notice (Notice of Recommendation)” which included a letter advising me that REDACTED was being assigned to the DOE’s REDACTED.

5. The package I was sent did not contain an Individual Education Plan (“IEP”).

6. I did not receive a copy of the IEP that I was told would be drafted as a result of or in connection with the May 11, 2021 CSE meeting in any manner.

7. So, on June 4, 2021 I wrote to the DOE to advise it that I did not receive an IEP (see, Parent Exhibit C at p. 1) and to reiterate the questions and concerns that REDACTED raised to the DOE-employed CSE members of the CSE team during the May 11, 2021 CSE review meeting (see, generally, Parent Exhibit C).

8. The DOE did not respond to my June 4, 2021 letter nor did it address any of the concerns I raised during the May 11, 2021 CSE meeting or in my June 4, 2021 letter.

9. I also made a point of going to visit REDACTED. However, when I went to see the school, I was advised that I would not be allowed to tour the school or to see anything other than the lunchroom because of COVID concerns. So, all I was allowed to do was to sit in the lunchroom with someone who identified herself as the parent coordinator and I was shown what I believe was a promotional video about the school. The video did not provide me with any new information. Further, the parent coordinator could not answer the questions set out in my June 4, 2021 letter or that I tried to ask her when I met with her. As a result, I think that the DOE denied me an opportunity to participate in planning for REDACTED education because it refused to allow me to see the facility to which it assigned REDACTED and because it did not respond to the questions I asked and the concerns I raised about how REDACTED would be taught.

10. After my June 4, 2021 letter and my visit to REDACTED, I received a new Prior Written Notice (Notice of Recommendation) package which included a new school assignment letter advising me that REDACTED was now being assigned to the DOE’s REDACTED.

11. Notably, the new package I was sent did NOT include an IEP. In fact, at least as of the date of this affidavit, I have not been provided with a copy of an IEP resulting from the May 11, 2021 CSE meeting.

12. After receiving the new forms from the DOE, which I believe were dated June 18, 2021 (I am not sure as to when I actually received the new package of documents from the DOE dated June 18, 2021 but I believe I received it after the 2020-2021 school year ended in June 2021), I again wrote to the DOE to reiterate my concerns, including my concerns about the DOE never sending me an IEP after the May 11, 2021 CSE meeting (See, Exhibit E at p. 3) and to ask questions of the DOE about its’ plans for REDACTED (see, generally, Parent Exhibit E).

13. The DOE did not respond to Parent Exhibit E in any way.

14. I did not receive the new Prior Written Notice (Notice of Recommendation) package with the new school assignment of REDACTED for REDACTED until after the 2020-2021 school year ended in June 2021. So, in addition to sending the DOE Exhibit E, after receiving the package and during the summer of 2021, I made numerous attempts to call

REDACTED so I could make an appointment to visit the school. I left voicemail messages with my name, phone number, and saying that I wanted to visit the school but, nobody from the school ever returned any of my calls.

15. I believe that by failing to respond to Exhibit E or to my numerous phone calls and allowing me to at least visit REDACTED the DOE denied me the opportunity to play a meaningful role in planning for REDACTED education because it denied me necessary information that I believe I needed to figure out whether the DOE’s plans for my daughter were in any way appropriate to address her learning needs. In addition to neglecting to respond to the questions and concerns raised during the May 11, 2021 CSE meeting and in my letters, the DOE never provided me with an IEP so, at least as of the date of this affidavit, I am still in the dark regarding the DOE’s plans for my daughter.

16. Notably, during the May 11, 2021 CSE review meeting, REDACTED and I shared all of the information available to us regarding REDACTED at the time in the short time that the DOE allotted us for the meeting.

17. In addition, we did everything we could to cooperate with the DOE in anticipation of and during the meeting. Specifically, we provided the DOE with assorted information and reports which included, but were not limited to reports prepared by REDACTED and included a psychosocial report, and all of other information we had regarding

REDACTED learning needs (see, generally, Parent Exhibits M, R, W, X, Y, Z, AA, BB).

18. In addition, we asked the CSE to consider REDACTED health-related needs in planning for her education. Her health-related needs include, but are not limited to her REDACTED, her seizure disorder (and the effects of the medications she has to take to regulate and avoid seizures), REDACTED.

19. Based on REDACTEDs health-related and other documented learning needs during the May 11, 2021 CSE meeting, I, as I have during every CSE meeting I was afforded an opportunity to attend prior to the May 11, 2021 CSE meeting, asked the DOE to consider placing REDACTED into a “New York State Education Department (“NYSED”)approved non-public school (“NPS”) program.

20. Unfortunately, as had happened during my CSE meetings that occurred prior to the May 11, 2021 CSE meeting, the DOE-employed members of the May 11, 2021 CSE refused to consider whether to make such a recommendation saying that they had a division within the DOE that served students with disabilities, District 75, and as a result, they would not consider anything else for REDACTED.

21. During the May 11, 2021 meeting, the DOE-employees advised me, REDACTED that the DOE would “note” our concerns about REDACTED learning and health-related needs but, in so far as I know, the DOE did nothing to actually address her needs. As stated previously, the DOE did not, at least as of the date I am signing this affidavit, ever send me a copy of the IEP it was supposed to have generated resulting from the May 11, 2021 CSE review meeting.

22. Accordingly, I believe that the DOE denied me the right to meaningfully participate in planning for REDACTED education and denied REDACTED a free appropriate public education (“FAPE”) because, assuming that the DOE actually made plans and drafted an IEP for REDACTED for the 2021-2022 school year, it did so without allowing for my input and without ever allowing or making it possible for me to see the IEP and thus, I do not think that the DOE could have developed a plan that addressed all of REDACTED learning needs.

23. Because the DOE did not send me an IEP and because it did not respond to Parent Exhibits C and E, on August 17, 2021, I had my attorney send the DOE a letter informing the DOE that REDACTED father and I disagreed with its’ plans for REDACTED (what little we knew of the DOE’s plans was that the DOE wanted to move REDACTED to a 12:1+1 class in District 75 because the DOE did not send us an IEP) and that we thought that the DOE denied REDACTED a FAPE. In the letter, our attorney further advised the DOE that, unless it provided REDACTED with an offer of a FAPE, we would place her at REDACTED for the 2021-2022 school year and seek tuition reimbursement and funding for having to place her at the REDACTED. (MM)

The students’ progress reports submitted into evidence show the students progress at the private school. (BB,CC&DD)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was ”reasonable” as an appropriate placement for the student’s 2021-2022 school year.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2021-2022 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition and related services at the private school for the time the student attended the private school during the 2021-2022 school year; and it is further

ORDERED that the CSE shall forthwith reconvene and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2022-2023 school year; and it is further

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: April 18, 2023

Queens, New York

Sharifa Milena Nasser - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] 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)

Footnotes

[12] students with 1 head teacher, 1 assistant teacher, and 2 paraprofessionals. REDACTED was grouped in classes with students of similar age, functioning levels, and needs throughout the school day during the 2021-2022 school year. REDACTED attended REDACTED in person for the entire 2021-2022 school year, 37. In my professional opinion, based on our experience with REDACTED to date and his educational records, REDACTED requires the support and structure of a school program, with the support of a 1-to-1 paraprofessional, like the one REDACTED provided to her during the 2021-2022 school year, to build on the skills that she learned in school.

[75] program classes. 41. REDACTED program differs from anything proposed for her for the 2021-2022 school year by the DOE in that it provided REDACTED with a departmentalized program with different teaching teams for each subject. Students at REDACTED were scheduled for classes on all 5 floors of the school building, providing opportunities for independence throughout each school day. Each academic class was taught by a head teacher and assistant teacher, with push-in support provided by a team of clinicians (OT, SLP, PT, and Counseling). There were between 3-5 adults supporting all of REDACTED classes, allowing for regular small group instruction.