New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570801 - NYC: 224994

FINDINGS OF FACTS & DECISION

Case Number: 224994

NYS Identifier Number 570801

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 05/04/22, 07/11/22 & 08/5/22

Actual Record Close Date: 09/10/2022

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 05/04/22 (V)

[CONFIDENTIAL] DOE Representative DOE 05/04/22 (V)

[CONFIDENTIAL] Attorney PARENT 07/11/22 (V)

[CONFIDENTIAL] DOE Representative DOE 07/11/22(V)

[CONFIDENTIAL] Attorney PARENT 08/05/22 (V)

[CONFIDENTIAL] Mother PARENT 08/05/22 (V)

[CONFIDENTIAL] Witness PARENT 08/05/22 (V)

[CONFIDENTIAL] DOE Representative DOE 08/05/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

A Ten-Day Notice 08/24/21 PARENT 03

B Impartial Hearing 01/08/22 PARENT 06

Request

C Neuropsychological 02/20/21 PARENT 30

Evaluation

D The REDACTED Program N/A PARENT 13

Description

E 2021/2022 Student N/A PARENT 01

Schedule

F Enrollment Contract 04/30/21 PARENT 06

G Tuition Affidavit 09/20/21 PARENT 01

H '21/'22 Academic Progress 10/30/21 PARENT 04

Report

I Fall of 2021 Report Card 01/12/22 PARENT 17

J Academic Progress Report 04/12/21 PARENT 13 For '21/'22

K Affidavit of REDACTED 07/06/22 PARENT 05

L Affidavit of REDACTED 07/6/22 PARENT 08

On March 14, 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 an REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District REDACTED. The Parents filed a Due Process Complaint (“DPC”) on or about January 08, 2022. Impartial hearings were held on May 4, 2022, July 11, 2022 and August 5, 2022. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parents allege that the student’s Individualized Education Program (“IEP”) dated June 17, 2021, is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2021-2022 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for his educational planning. The Parents further allege that they were never provided with a copy of their child’s IEP. (K-3) The Parents initiated an independent neuropsychological evaluation on May 12,13,15,18,19,20, June 02,09 & September 03rd all respectively of the year 2020. (C-1) The student’s lengthy evaluation has the following diagnosis, “Attention deficit hyperactivity disorder-combined subtype, falling in the severe range, specific learning disorder with impairment in reading and specific learning disorder with impairment in reading written expression, falling in the mild range and a rule out of autism spectrum disorder.” (C-21)

The Parent’s state, that they served the DOE with notice of the student’s unilateral placement at a private school on August 24, 2021. (A)

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.
• • A finding that the student would have been entitled to transportation services to and from the private school.

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and submitted no documents in evidence. (T-23) 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 August 05, 2022, the DOE stated that they would not cross the 2 affiants. (T-26) The Parent also submitted (12) 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 failed to call any witnesses to testify on its behalf and did not submit any documents in evidence.

The DOE did not submit any evidence to show that they had replied to the Parents 10 day Notice prior to the Parents unilateral placement of the student.

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 c0ircumstances, 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 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 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 2021-22 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 student’s lengthy and detailed neuropsychological submitted by the Parent, was undisputed by the DOE. (C)

The Parent testified that they “participated in the June 2021 IEP meeting along with REDACTED first grade teacher, reading specialist and therapist, the head of special education for community routes and two DOE staff members, one of whom was a therapist. REDACTED teacher stated REDACTED would benefit from smaller classrooms “(large groups are overwhelming for REDACTED ) and more language rich curriculum. They also said that he needs multiple teachers to consistently redirect and facilitate his initiative. Despite the findings of the evaluation and REDACTED teachers indications, the DOE simply kept the same ICT recommendation in place for REDACTED. I respectfully disagreed with the DOE view, stating that the evaluation was quite clear and as parents, our observations back the evaluation’s recommendation. I said that we will continue to advocate for a different classroom setting. We did not receive a copy of the IEP or school placement letter after the IEP meeting.” (K-3)

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction, and the students has progressed during his time there as per the students’ progress reports. (H & J) The Director of Elementary Programming, at the student’s unilateral placement school, has noted his progress within their school. “REDACTED classroom for the 2021 to 2022 school year was called “REDACTED” and had 10 students, four teachers, and intern and two clinicians who pushed in and pulled out. Although his class consists of 10 students, REDACTED was never in the learning group with all 10 students. REDACTED learns either individually or in a group of 2 to 5 students (specials).” (L-4) “Overall, I believe the program that REDACTED received at REDACTED for the 2021 2022 school year has been very appropriate to meet his needs. He clearly benefited from the support and strategies that were able to give him and he made substantial progress building and strengthening his academic skill sets as well as his social skills and self-regulation. While he has made progress, he continues to need assistance to use his words rather than his body to express upset and recognizing when he has escalated to the point where he might lose control. I feel confident the program we are providing will continue to assist him in making progress towards goals.” (L-8)

The Student’s Progress Reports were also submitted into evidence, and they show the students’ progress through his semesters for the 2021-2022 school year. (H&J) The student has progressed academically and socially from the instruction provided at the student’s unilateral placement school. (Id)

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.

SPECIAL EDUCATION TRANSPORTATION SERVICES

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]) When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, the, the DPC requests “transportation” services, the record does not, specify or articulate any of the specific reasons cited above that are required as part of the inquiry as to whether the student needs “special education transportation.”

However, this does not preclude a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it must consider transportation of the student to the private school in accordance with Educ. Law 3635; 4402[4][[d].

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 cost and expenses at the private school, including transportation services 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 after the completion of the student’s evaluations 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: October 4, 2022 _____________________________

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)