New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570855 - NYC: 225011

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 07/07/23 (V)

[CONFIDENTIAL] DOE Representative DOE 07/07/23 (V)

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

[CONFIDENTIAL] Attorney PARENT 11/09/22 (V)

[CONFIDENTIAL] Attorney PARENT 01/11/23 (V)

[CONFIDENTIAL] Mother PARENT 01/11/23 (V)

[CONFIDENTIAL] DOE Representative DOE 01/11/23 (V)

[CONFIDENTIAL] Attorney PARENT 01/19/23 (V)

[CONFIDENTIAL] Mother PARENT 01/19/23 (V)

[CONFIDENTIAL] DOE Representative DOE 01/19/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 03/08/22 PARENT Request 03 pages

B. Parent Ten-Day Letter 08/23/21 PARENT C REDACTED 04/09/21 PARENT 04 Contract 01 pages

D. 2021/2022 REDACTED N/A PARENT 01 Schedule E REDACTED 01/31/22 PARENT 01 Tuition Affidavit

F. 2021/2022 Parent Proof N/A PARENT Of payment G 2021/2022 REDACTED N/A PARENT 01 18 Attendance H REDACTED N/A PARENT 01 Program description 04 pages

I. Neuropsychological 09/08/18 PARENT 08 Evaluation J Neuropsychological 05/25/22 PARENT 09 Evaluation

K. REDACTED N/A PARENT Exit Summary L REDACTED 01/13/23 PARENT 02 Witness Testimony Affidavit June 2022 03 pages

M. The Parent Witness 01/13/23 PARENT 02 Testimony Affidavit

On. May 27, 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 (21) year old student attending a private school and the New York City Department of Education ("DOE") District 02. The Parents filed a Due Process Complaint ("DPC") on or about March 9, 2022. Impartial hearings were held on July 7, 2022, October 7, 2022, November 9, 2022, January 11, 2023 and January 19, 2023. 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 March 16, 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 Parent's state that they served the DOE with notice of the student's unilateral placement at a private school on August 23, 2021. (B)

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]. The DOE stated that they would not cross the 2 affiants. (T-27) The Parent also submitted (13) 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. (T-25) 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 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, 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 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.

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, [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 evaluations submitted by the Parent, were undisputed by the DOE. (I&J)

The Parent's witness testified via affidavit on direct, REDACTED, Focus Instructor at REDACTED.

2. This is my 5th year at the school, and my responsibilities include working with students 1: 1 and providing compensatory skills and strategies. I support their work in the classroom and facilitate social interactions.

3. I have my M.P.S. in Creative Arts Therapy, and I am licensed in New York State by the NYS Office of the Professions and Nationally Board Certified by the American Art Therapy Association.

4. REDACTED is a program for young adults who need additional support in academics, executive functioning, and independent living skills. The focus program within REDACTED is designed as a 1:1 program. We provide individualized support to help students with disabilities achieve academic, social, and emotional independence. Our mission is to help students become better able to self-advocate, identify their strengths and weaknesses, and become equipped with skills and strategies to compensate for their difficulties.

5. I am familiar with REDACTED. I was his 1:1 focus teacher during the 2021-2022 school year. REDACTED is diagnosed with Autism. He struggles with attention, social cues, poor written and verbal comprehension, and slow processing speed. I worked with him individually and was in regular communication with all his teachers. I attended all grade-level meetings and individual meetings for him. I also communicated with his parent at conferences and regularly throughout the year.

6. REDACTED began the 2021-2022 school year having difficulty in math. He needed help breaking down multi-step directions. He needed help with numerical and word problems. We used strategies to address these issues. We would lay out the problems with the verbal instructions and the number of steps on the other. With much practice and repetition, he was able to become stronger with recall and retrieval. With a great deal of reinforcement, he developed more confidence. By the end of the year, he was more successful with understanding word problems and recognizing the steps necessary to complete a problem.

In English, REDACTED started the year needing a great deal of help organizing his writing. I gave him the tools to improve his outlining skills, and he was able to use the tools without prompting by the end of the year. In reading, he had difficulty at the beginning of the year with comprehension and identifying the main idea. We worked to deepen his understanding, and we discussed what he read. We worked on breaking paragraphs into individual sentences to help clarify the main idea. We used a teach-back method to rephrase and give him a chance to teach back the material, in order to improve his ability to comprehend. He achieved a great deal of success.

8. At the beginning of the year, he had difficulty with his attention and ability to read social cues. Through strategies designed to refocus him and create opportunities for self-reflection, he was better able to know when he was off-topic. By the end of the year, he could stop and say aloud that he had gotten off-topic and needed to focus and stay on topic. He began the year as a shy student, and after practice and roleplaying exercises, he developed more confidence. He even became involved with a program with the REDACTED with improvisation. He interacted well with the other students and enjoyed the experience.

9. I was able to measure his progress with informal and formal assessments. We were able to note academic progress in reading and math by the end of the 2021-2022 school year. His program was a mixture of typical academics, including literacy, math, current events, and creative arts. He met with me 1:1 three times per week. I worked with him to address planning for his future, discuss social situations that occurred each week, and develop strategies to help his executive functioning weaknesses. His classes had 6-7 students with one teacher. He became more independent by the conclusion of the year. His confidence improved, and he had a strong desire to live independently. He could travel on his own from Staten Island and hold an internship. He is currently living independently and attending REDACTED. He has been able to use the skills he developed in REDACTED in his life now.

10. REDACTED needed small classes and individualized attention to make progress. He was successful with the support that he was given in our program.

11. I maintained communication with REDACTED parents throughout the 2021-2022 school year. We had teacher conferences, report cards, and informal meetings. All of REDACTED teachers participated in grade-level meetings, and I had weekly contact with all of REDACTED teachers to manage and adjust his goals throughout the year. We individualized his program. I believe REDACTED was an appropriate and successful program for REDACTED 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 his time there as per the students' Neuropsychological reports. (I & J)

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 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: April 11, 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)