New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

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

[CONFIDENTIAL] Attorney PARENT 07/21/22 (V)

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

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

[CONFIDENTIAL] Attorney PARENT 11/03/22 (V)

[CONFIDENTIAL] DOE Representative DOE 11/03/22 (V)

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

[CONFIDENTIAL] Mother PARENT 12/12/22 (V)

[CONFIDENTIAL] DOE Representative DOE 12/12/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Request for Due 05/04/22 PARENT Process Proceeding and Notice of Appearance 07 pages

B. IESP 10/28/20 PARENT 10 pages

C. Student Contract 11/08/21 PARENT Program Description and Curriculum 18 pages

D. Affirmations Regarding 09/01/22 PARENT 02 Tuition Breakdown and Payments

E. Curriculum Schedule 21'/22' PARENT 01 pages

F. Student Attendance 21'/22' PARENT 01 pages

H. G Assessments, Plans, N/A PARENT 31 and Reports Request for IEP and 10/21/22 PARENT Placement, Ten-Day Notice 02 pages

I. Affirmation of School N/A PARENT Supervisor named REDACTED 11 pages

On. J Affirmation of Parent N/A PARENT 02

June 24, 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 a twelve (12) year old student attending a private school and the New York City Department of Education ("DOE") District 28. The Parents filed a Due Process Complaint ("DPC") on or about May 4, 2022. Impartial hearings were held on July 11, 2022, July 21, 2022, September 14, 2022, November 3, 2022 and December 12, 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 October 28, 2020, is procedurally and substantively flawed and woefully inadequate. The Parents allege that they sent the DOE a letter on requesting a new IEP and expressed their concerns for the current IEP. (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 allege that that they served the DOE with notice of the student's unilateral placement at a private school on October 22, 2021. (H) October 21, 2021

At. the impartial hearing, the Parent seeks the following relief: • Tuition funding for the student's attendance at the private school for the 2021-2022 school year minus the amount of tuition related to religious instruction.

THE DOE'S CASE

The DOE did not call any witnesses to testify on its behalf and failed to submit any documents in evidence. (T-26 ) The DOE stated that they did not intend on putting up a case to defend Prong 1. (T-26)

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], however the affidavits submitted failed to be appropriately notarized or sworn to. On the hearing date, the DOE stated that they would not cross either of the two affiants. (T-26) The Parent also submitted (10) 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 failed to submit any documents in evidence. (T-26) 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. 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. 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 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.

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.

Parent submitted two affidavits into evidence, however those affidavits were not notarized and appropriately sworn to and will not be considered. However, the Parents documentary evidence that was completely uncontroverted by the District has been taken into evidence and is part of the record.

The private schools detailed program description and missions also details the schools specific approach to each individual student and subject matters. (C) The Program description also details the school's approach to social skills, counseling, speech, occupational therapy and physical therapy. (C-8-9) The description also specifically addresses the 6th grade program for which the student is enrolled in. (C 13-18)

The Director of the private school affirmed the tuition for the private school of $80,000 for the 2021-2022 school year. (D) The portion of religious instruction for Hebrew instruction is $4,000.00 (D-2)

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. (G). 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.

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

ORDER

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, within 30 days of this order shall fund and/or directly pay for the cost of the student's tuition and related cost and expenses at the private school, minus the portion of tuition that is related to religious instruction of $4,000.00 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: February 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)