New York City Department of Education, Impartial Hearing Decision

NYSED # 574343 / NYC # 227214

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 227214

NYS Identifier Number N/A

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: Redacted

Hearing Requested By: Parent

Dates(s) of Hearing: 08/15/22 & 09/01/22

Actual Record Close Date: 09/09/22

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney DOE 08/15/22 (V)

09/01/22 (V)

[CONFIDENTIAL] Attorney PARENT 08/15/22 (V)

09/01/22 (V)

[CONFIDENTIAL] Mother PARENT 09/01/22 (V)

[CONFIDENTIAL] Director PARENT 09/01/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

A Impartial Hearing Request 6/29/22 10

B Findings of Fact and Decision IH # 210371 4/4/22 21

C Individualized Educational Program 1/24/22 40

D Speech and Language Therapy Report 1/20/22 4

E Teacher’s Report 1/19/22 3

F Physical Therapy Report 1/19/22 3

G Occupational Therapy Report 1/18/22 3

H Individualized Educational Program 2/10/21 28

I Individualized Educational Program 4/6/20 23

J Individualized Educational Program 3/27/19 22

K Psychoeducational Evaluation 4/12/18 6

L Correspondence to CSE 6/27/22 4

M School Location Letter 6/13/22 2

N Prior Written Notice 6/13/22 4

O Correspondence to CSE 6/9/22 3

P Program Description Undated 3

Q Class Schedule 2022-2023 SY 1

R Contract 7/6/22 4

S W-2s 2021 2

T Pendency Agreement 8/11/22 2

U Affidavit in Lieu of Direct Testimony 8/25/22 15

V Affidavit in Lieu of Direct Testimony 8/26/22

N/A N/A N/A IHO N/A

On July 7, 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 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (9) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: 21, regarding the student’s special education program. 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 August 15, 2022 and September 1, 2022. A list of the persons who appeared at the hearing and 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 through her attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about June 29, 2022. The DPC is carried under New York City (“NYC”) Case No. 227214. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief:

(a) A finding that the NYC-DOE failed to provide the student with a FAPE for the 2022-2023 school year, and that the private school is an appropriate unilateral placement, and that equities warrant granting the relief parent requests; and

(b) An order that the NYC-DOE to pay the tuition for the private school for the twelve-month program in the amount of $55,440; and

(c) An order that the NYC-DOE fund student's related services, including but not limited to issuing RSAs for such services; and

(d) an order that the NYC-DOE provide equipment and transportation as provided in the student’s 2022 IEP.

On August 11, 2022, the parties executed a “Pendency Agreement”, recognizing the un-appealed “Findings of Fact and Decision” in NYC Case No. 210371, as the student’s “pendency” program and placement in this case. The decision in NYC Case No. 210371 found that the same private school in the case was an appropriate placement for the student’s prior school year and provides that the student receive “Related Service Authorization” (“RSA’s) for the following related services: Speech/Language Therapy, 5x30 1:1, Physical Therapy, 2x30 1:1, Occupational Therapy, 4x30 1:1, Counseling, 1x30 3:1, and a health paraprofessional. (P-B & P-T) The pendency agreement/decision also awards the student “devices” such as a dynamic display speech generating with communication application and a weighted vest, as well as transportation services consisting of an A/C minibus with door-to-door service. (Id.) All of the student’s services are to be provided on a 12-month basis. (Id.)

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-13-5 & 26) The DOE declined to make an opening statement (T-23-4) but did make a closing statement. (T-61) 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 called (2) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-U & P-V) The DOE only cross examined the director of the student’s private school program. (T-34-50 & P-U) The Parent also submitted (15) documents in evidence. The DOE did object to a number of other Parent’s documents being received in evidence. (T-18-20) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

THE DOE’S DEFAULT The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer but did serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-13-5 & 26 & P-N) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

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 testimonial 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. As previously noted, the DOE did not serve and file an answer in the case but did serve the Parent with “Prior Written Notice,” which provides either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

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 rife 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)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case 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]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. 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 2022-2023 school year and that the Parent may be entitled to the proven relief he has requested.

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)

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"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

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])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

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 in this case indicates the following:

In its closing statement, the DOE argues that it does not admit or concede a denial of FAPE and that it contest the appropriateness of the unilateral placement and would suggest that the Parents have not met their burden, while leaving a findings of fact on that matter to the undersigned. It is well settled in the law that “opening” and “closing” statements do not evidence. Here, the DOE did not present any testamentary or documentary evidence to support its case or refute the Parent’s case. Accordingly, the only issue to be decided herein is the appropriateness of the relief sought by the Parent. The Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The Parent argues that the private school was an appropriate program for the student for the 2022-2023. The first witness for the Parent is the director of the student’s private school program. (P-U) She testified as follows:

2. I am the director of the [NAME] Elementary School [INITIALS], a program of the [FOUNDATION NAME]. I submit this affidavit based upon my professional training and personal knowledge about the School and Student, [STUDENT NAME].

3. I have been the director of [SCHOOL NAME] for ten years.

4. Prior to that, I worked in both general and special education for more than twenty-five years as a teacher and project director, working with students with behavioral difficulties, including a wide range of different types of developmental delays.

5. Previously, I was a clinical director of a program that serves students with special needs. I was also a full-time professor of special education at Hunter College. I taught graduate courses in autism behavior assessments and positive behavior supports.

6. I served on the New York City council Task Force for Autism and chaired the education sub-committee.

7. In addition, I have been a clinical director for a program that served children with special needs throughout the five boroughs of New York City.

8. I coordinated a pilot educational program that used Applied Behavior Analysis (ABA) to educate children on the autism spectrum for the Institute for Basic Research.

9. I have done professional trainings in ABA and functional behavior assessments locally, nationally and internationally.

10. I have undergraduate and master's degrees in education and a doctoral degree in psychology.

11. I have a New York State General Education Certificate grades 1 through 6 and Special Education Permanent Certificate that covers birth through age 21.

15. [SCHOOL INITIALS] does not provide religious instruction.

16. [SCHOOL INITIALS] employs head teachers, assistant teachers, school psychologists who are also Board-Certified Behavior Analysts/NYS Licensed Behavior Analysts, and administrative staff.

17. [SCHOOL INITIALS] is an elementary school for children between the ages of 5 and 14. There are 5 classrooms. This year, there are 36 students enrolled in the program.

18. All students have global delays and all classes provide differentiated instruction to the students. Students are provided with modifications and accommodations in all classes based on their individualized needs, including behavioral needs.

20. He is a student diagnosed with Autism. He is globally delayed in all the domains.

21. [STUDENT NAME] has significant delays in socialization, academic skills and activities of daily living. He requires extensive support within the classroom.

22. [STUDENT NAME] enrolled as a full-time student in the ten-month program in September 2018 after ageing out of a pre-school program.

23. He is currently enrolled in the school-aged twelve month-program.

24. [STUDENT NAME] has been attending school in person all year, with COVID precautions in place.

28. [STUDENT NAME] can engage in behaviors that are distracting and potentially dangerous to himself and to other students. He is highly sensory seeking and has decreased impulse control. He will turn over his desk or slip out of his seat onto the floor. He is very distractable. [STUDENT NAME] also has PICA which has caused medical issues.

32. Our psychologist, a Board-Certified Behavior Analyst, trains the staff and service providers to implement [STUDENT NAME]’s behavioral interventions and plans. We work with a variety of reinforcers to help maintain [STUDENT NAME]'s attention during lessons.

33. [STUDENT NAME] is on a token system with very high rates of reinforcement. We have an interval schedule for which we use tokens. When he maintains appropriate behavior and attention during that interval, he receives a token. Once he acquires the designated number of tokens, he is given access to a desired reinforcer.

34. He also has a visual schedule to help him predict what is coming next throughout the day.

35. He also has access to a weighted vest that helps regulate him when needed.

36. [STUDENT NAME] has a full-time paraprofessional assigned to him, one-to-one, to implement behavioral strategies and to keep him safe from ingesting inedible objects.

37. I provided Counsel a copy of [STUDENT NAME]'s class schedule. I believe it is in evidence as

Exhibit Q.

40. [STUDENT NAME]'s teacher is Ms. [NAME]. She is a New York State Certified Special Educator, with a master's degree. She has 9 years teaching experience and has worked for the [NAME] Elementary School for a total of 5 years. Ms. [NAME] also has strong training and background in applied behavior analysis.

41. There is also an assistant teacher in that room, [NAME]. She has an undergraduate degree in education and has been working at [NAME] for 5 years.

42. We group students according to their learning style and needs. We look at the way our students learn and group them with similar peers.

43. [STUDENT NAME]'s class is a group of functional peers.

44. Although there are six students in the class, the instruction is delivered in one-to-one or in very small group settings.

47. For [STUDENT NAME], all new skills are introduced 1:1. He can practice mastered skills in a group of two to three students.

48. Although [STUDENT NAME] is functionally non-verbal, he is working on answering social questions with his device and produces several sounds.

49. He has a dense schedule of intensive teaching, which focuses on goals through one-on-one direct teaching using ABA strategies.

50. This intensive teaching program is implemented by multiple people within the classroom: the teacher, the teaching assistant, the board-certified behavior analyst, sometimes me, to ensure that [STUDENT NAME] does generalize it across people. We record and analyze the data to make sure that those skills are being learned. Once they have been learned in that intensive way, we bring it into other environments, for example, into daily news, center time, or during a social skills group.

68. Our field trips have resumed and [STUDENT NAME] has had outings into the community throughout the summer program. We plan on additional field trips throughout the year, including going ice skating, bowling, and to different gyms or museums, as examples. We also have buddy programs, where we invite students from other schools in or go to another school to work on art projects, sports or other activities. That program will resume when it is safe to do so.

72. [STUDENT NAME] receives all of his related services within school through RSAs, Related Service Authorizations. The RSAs are issued to the parent by the DOE. Parents may choose to have them either in school or outside, with therapists who either come to the home or provides services at a center.

73. [STUDENT NAME]'s mother opts for him to receive his services in school.

78. We provide space and equipment for all of the providers. The Occupational Therapists have different areas they can work in. One is a gym OT area, with a fine motor area. Another is in a sensory area with a large swing and other equipment. The third area is the ADL suite, in which there are separate rooms. This includes a kitchen area and a bedroom area, where they're working on functional ADL skills. The others include a simulated barbershop and a simulated dental area where students are learning skills they can generalize to the community.

115. Based upon my knowledge of [STUDENT NAME], the program, direct observation and supervision of [STUDENT NAME]'s instructional staff, it is my professional opinion that the [NAME] Elementary School is an appropriate program for [STUDENT NAME] for the 2022-2023 school year. (P-U)

On cross examination, the witness testified that she believes the school’s summer session started on July 5th. (T-38) She confirmed that Exhibit “Q” is a schedule applicable to the entire school year and that nothing about the class instruction changed beginning of September. (T-41) The students stay the same in the same class makeup. (T-42) The related services clinicians have a specific schedule that they follow for when they provide services. (Id.) She has never worked for the NYC-DOE, but she has participated in IEP meetings. (T-44) There was no other substantive testimony developed during the witness’ cross examination. (T-34-50)

On re-direct examination, the witness testified that the tuition that's paid is for the educational services does not include OT, PT, speech, counseling, and a paraprofessional. (T-51-2) There was no re-cross examination of the witness. (T-52)

The Parent’s final witness is the student’s mother. She testified via affidavit of direct examination as follows:

9. I was not asked and did not waive our rights to a formal three-year review. In fact, I would never do that, because I want to be sure that [STUDENT NAME] has up-to-date baselines in order for the IEP to reflect his current performance levels.

10. Instead of the three-year review, the IEP team reviewed goals with the teacher, and asked me what I thought. I deferred to the team on the generalities, but the IEP team did not read the actual goals to me. It is not a fully accurate statement that I was “in agreement with goals” at the IEP meeting, because I had not read them yet. Exhibit C:3.

26. On June 9 and 27, 2022, my attorney contacted the CSE to advise that I disagreed with the IEP because [STUDENT NAME] was not evaluated, there was no behavioral planning, and the goals were just repeated from the year before. Exhibit O.

27. [STUDENT NAME] was offered a seat at [SCHOOL NUMBER] on [NAME] Street. Exhibit M.

28. At the end of June, I visited the offered school, and determined that it was inappropriate for [STUDENT NAME].

31. Since July 2022, I have noticed very positive changes in [STUDENT NAME]'s learning.

32. Socially, he is more engaged during extended family visits.

33. He is always engaged with his immediate family.

34. Academically, he is enthusiastic about learning and shows us what he is doing in school, whereas before, he would not sit with us, instead scribbling something and run away.

35. He is aware of time, and every night he looks at the clock, and when it is 7:30, he initiates his bedtime routine by shutting down everything and going upstairs to read a book before bed.

36. His activities of daily living have also improved. For example, if I say, "let's go outside," he runs to get his shoes, hat and coat.

37. The school involves me in every aspect of [STUDENT NAME]'s education and has an open-door policy. I am very happy with the communication I have with the school.

38. I have submitted the enrollment agreement and know that it obligates us to pay the tuition of $ 55,440 for the twelve-month school year. Exhibit R. (P-V)

The DOE declined to ask the student’s mother any questions on cross examine. (T-53)

The DOE’s default is a tacit concession that the student was denied a FAPE for the 2022-2023 school year. (Supra) Additionally, the testamentary and documentary evidence summarized above and received in evidence indicates that the private school is an appropriate placement for the student for the 2022-2023 school years, in that it is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., Gagliardo, and Berger, supra)

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 student’s IEP dated January 24, 2022, recognizes the student’s need for special education transportation services. (P-C) It has been long held in the law that "[A]dmissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever, or to whomever made." (See Reed v. McCord, 160 N.Y. 330, 341 [1899]) However, merely showing the statement in the report is admissible under the admissions exception is not enough to admit it into evidence. Rather, a foundation for the admission of the report itself as a business record must be established. (See Yassin v. Blackman, 188 A.D.3d 62 [2nd Dept. 2020]) Here, the DOE and the Parent agreed that the document be received in evidence. (T-18-20) As such, the student’s IEP dated January 24, 2022 is deemed admissions by the DOE as to the student’s needs. (P-C)

Accordingly, the hearing record does supports a finding that the student would be denied a FAPE if there was a lack of provision for “special education transportation.”

Additionally, 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]) Here the DOE has already conceded that the student requires special transportation services, and it must also 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 upon the DOE’s DEFAULT and after INQUEST that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the NYC-DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition at the private school, not to exceed $55,440, and the NYC-DOE shall fund student's receipt of his mandated related services, for the entirety of the student’s 12-month 2022-2023 school year, including but not limited to issuing RSAs for such services, with the cost for such related services not to exceed the reasonable and fair market rate cost for those services in NYC; and the NYC-DOE shall provide the equipment and transportation as provided in the student’s IEP dated January 24, 2022 (P-C); and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2022-2023 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST 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 upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: September 13, 2022 _____________________________

New York, New York Edgar De Leon - 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)

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Footnotes

[5] W Certification of Exhibits 08/31/22 PARENT 02