NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST - “PENDENCY” & MERITS
Case Number: 227223
NYS Identifier Number N/A
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Dates(s) of Hearing: 08/25/22, 10/20/22 & 11/04/22
Actual Record Close Date: 12/05/22
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[REDACTED] Attorney DOE 08/25/22 (V)
10/20/22 (V)
11/04/22 (V)
[REDACTED] Attorney PARENT 08/25/22 (V)
10/20/22 (V)
11/04/22 (V)
[REDACTED] Mother PARENT 10/20/22 (V)
11/04/22 (V)
[REDACTED] Private Program Director PARENT 11/04/22 (V)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
DOE EXHIBITS
1
6/29/2022
Due Process Complaint
11
2
11/22/2021
Individual Education Program (IEP)
41
3
06/2021
End of Year Report
5
4
6/28/2022
Prior Written Notice
11
5
10/19/2022
Affidavit of REDACTED
3
PARENT EXHIBITS
A 06-29-2022 Impartial Hearing Request 9
B 06-15-2022 Parent letter to the CSE - Ten-day Notice 2 C 12-19-2019 Physiotherapist and Speech and Language Recommendation Letter 5
D
April & May 2020
Neuropsychological Evaluation: Dr. REDACTED and Dr. ACTED [NAME]
14
E
05-05-2020
Neurologist Clinical Letter: Dr. REDACTED
3
F 2-15-2022 2022-2023 REDACTED School - Enrollment Contract 2 G 08-16-2022 Parent’s Proof of Payment - Affidavit of REDACTED 1
H 10-07-2022 REDACTED School - Attendance Report 1
I Undated REDACTED School - Summer Schedule 1 J 1-24-2022 REDACTED School - Weekly Schedule (2022-2023) 1 K Various REDACTED Bank Statement Proof of payments made by parent to the school 6
L Undated REDACTED School – Program Description 1 M 10-04-2022 REDACTED School - Affidavit of REDACTED 11
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 Parents of an (8) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: 02, 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 25, 2022, October 20, 2022 and November 4, 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), REDACTED 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. 227223. 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) Pendency placement at the private school; and.
(b) An interim order for special education transportation to and from the private school during the ongoing hearing; and
(c) Door-to-door, special education transportation to the private school for the 2022-2023 school year; and
(d) Reimbursement of tuition for the private school from July 1, 2022 through June 30, 2023 including reimbursement of monies paid to date and any payments made in the future; and
(e) Costs and fees; and
(f) Any additional relief such as the IHO determines is appropriate.
There was an “Pendency Agreement” executed between the parties on July 11, 2022, that identified the un-appealed “Findings of Fact & Decision,” dated May 17, 2021, in NYC case number 203135 as the student’s “pendency” placement and program in this case. (T-2-3) The Pendency Agreement recognizes the student’s private school as his pendency placement on a 10-month school year basis. (T-3 & 12)
THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and submitted (4) documents in evidence with the Parent’s consent. (T-13-4) 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 (3) witnesses to testify on her behalf, two who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-G & P-M) The DOE only cross examined the private school program director. (P-M, T-19 & 67-9) 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.
FINDINGS OF FACTS & DECISION - STANDARD OF REVIEW
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 with 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)
DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf, submitted (4) documents in evidence, and filed and served a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & D-4) “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 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 “Prior Written Notice” 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 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 both sides and the 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 she has requested.
The DOE did offer the testimony of (1) witness, who would have given her video testimony in an office open to un-tolled members of the DOE and perhaps others. (T-24) The Parent objected to testimony being able to be heard by unknown parties, whether members of the agency or not. (T-26-7 & 61) On November 4, 2022, the DOE witness appeared, but was not “visible” as previously directed and the agency requested she be allowed to give her testimony by telephone. (T-49-54)
Whether to allow testimony by telephone or video conferencing is within the discretion of the hearing officer. (See 8 NYCRR § 200.5(j)(3)(xii)(c), Letter to Anonymous, 23 IDELR 1073 (OSEP 1995), Hampton Sch. Dist. v. Dobrowolski, 17 IDELR 518 (D.N.H.), Las Virgenes Unified Sch. Dist., 17 IDELR 373 (SEA Cal. 1991) and Walled Lake Consolidated Sch. V. Jones, 24 IDELR 738 (E.D. Mich. 1996). The undersigned declined to exercise his discretion and allow the DOE’s witness to testify by telephone for the following reason”
All right. First, let me say that the regs do speak to telephonic testimony at the discretion of the hearing officer. And telephonic testimony should be the exception, not the rule. It became the rule in New York City. It became the rule to the extent where not only were witnesses testifying telephonically, but it got to the point where it was just the hearing officer and the court reporter in a room at 131 Livingston Street and everyone else calling in. And that, obviously, was ridiculous.
This system was put -- and let's talk about telephonic testimony. You cannot see the witness. Half the time they're talking about CSE cases that occurred years ago. Half the time they were reading documents, just reading documents over the telephone. You could not see what they were doing. So, you certainly could not adjudge body language, their eye contact, the things that all humans do to adjudge the credibility of another human when they're speaking to him. So, we had a lot of issues with it.
The State, and the transcription service, and the New York City office came up with this system as a result of COVID, which systems like this are being now used in the family courts, in the criminal courts where I practice. And there these -- we don't have these issues. People appear, and they appear all the time.
Ever since this system has started, I have had nothing but problems with the DOE complying. And I think it's a cultural thing. They just take the attitude they're not going to appear in person. They don't want you to see them. And their witnesses don't want to -- don't want to be seen.
I'm not saying that in this particular case it's not a technical issue. I believe everything that REDACTED has put on the record. I wholeheartedly believe that she has made diligent efforts to get the witness to appear visually so that we can assess her credibility
But this could have been worked out a long time ago, and REDACTED says that it was. But for some reason, we can't see the witness now.
The application is to allow the witness to give testimony telephonically. I'm not inclined to do that under these circumstances. I am just not. I know a lot of my colleagues do not care about this. The State wants us to do it. The City administration wants us to do it. The transcribers have provided the service. It definitely is helpful. But the Agency, for whatever reason, is having a tough time getting on board. Nevertheless, I'm just not inclined to do it that way.
So, the next thing -- I'm going to deny that application. (T-54-6)
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"])
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. The educational director of the private program testified on direct via affidavit as follows:
1. I am the Elementary Program Director at REDACTED, located at REDACTED, New York, NY REDACTED.
3. REDACTED offers a 12-month full-time special education program for students with special needs, ranging from autism, language-based learning disabilities, motor deficits and delays, and emotional challenges in the age range of 2.8-11. Because we are a twelve-month program, there will be changes and additions to the schedule in the fall and throughout the year. Therefore, my testimony below is based on what we have done so far this year since the beginning of our school year in July 2022.
10. We offer our students Speech-Language Therapy ("SLT"), Occupational Therapy ("OT"), and Counseling. Our therapists are all New York State certified and hold Masters level or Doctorate level degrees in their field of work. Therapists work collaboratively with teachers, families, and each other to provide the students with strategies to support skill development that will allow the students to be more successful in academic and social arenas. All our teachers and providers participate in formal team meetings twice per month and professional development opportunities throughout the year. Each student's team also meets informally daily to discuss important information and observations about each child. Additionally, we have a School-Home Partnership Program that provides support groups and workshops to parents, as well as to siblings and grandparents. This partnership includes opportunities to work with staff individually and in groups on issues relevant to each family's needs and concerns. Some workshops held include: "Siblings Workshop"; "Observe Watch Listen"- 'Owl'ing workshop'; "Social Group" workshop, "Occupational Therapy and Sensory needs" workshop, and many more. We hold events throughout the year, including Curriculum Night, Fall family Fun Day, and Winter Family Fun Day, which provide families with opportunities to become a part of our community of learners.
11. We adhere to the New York State Common Core Standards at REDACTED. Still, we differentiate our instruction and create individualized learning programs that meet the educational needs of each student. Field trips and child-initiated projects are also an integral part of our approach. In addition, we enrich our curriculum throughout the year, integrating external programs and professionals to enhance daily lessons and activities. These programs include gym classes at The REDACTED, school-wide traditions and celebrations, and engaging with animals through The REDACTED in the City.
16. For 2022-2023, REDACTED is in a class that I oversee. Therefore, I am familiar with his program details and his schedule. I see him daily and am in his classroom regularly, on average, a few times per week. I also attend team meetings where REDACTED's progress is discussed. Additionally, I facilitate arrival and dismissal for the entire school, so I also see REDACTED in that transitional period of the day.
17. REDACTED started at REDACTED in September of the 2020-2021 school year; this is his third year at REDACTED.
18. For the 2022-2023 school year, REDACTED is part of a 10:1:2 classroom taught by Head Teacher REDACTED, who has a Masters Degree in Early Childhood Special Education from REDACTED and is New York State ("NYS") certified. In addition, REDACTED class is supported by two associate teachers. REDACTED, who has a Bachelor's Degree and is currently working on her Masters Degree in Early Childhood Special Education with a concentration in Behavioral Disorders, and REDACTED, who has a Bachelor's Degree in Special Education and General Education and is NYS certified.
19. REDACTED receives OT once a week for thirty minutes in a group of four students and twice a week for thirty minutes individually (1:30:4 and 2:30:1) with REDACTED. REDACTED receives Speech Language Therapy twice a week for thirty minutes in a dyad and once a week for thirty minutes individually (2:30:2, 1:30:1) with REDACTED. He receives Counseling individually for thirty minutes and once a week in a pair for thirty minutes (1:30:1, 1:30:2) with REDACTED. His therapists are masters-level professionals and have NYS certifications in their fields. Each therapist evaluated REDACTED in their respective therapy area to determine the frequency of services needed and what skills to focus on. The specific mandates REDACTED receives were individually crafted for REDACTED; different students at REDACTED receive various therapies and ratios. In addition to REDACTED individualized therapies listed above; the therapists often push into the class for specific activities. I often say that one of the things that makes REDACTED program unique is the integration of therapies into the classroom; therapists and teachers both teach and treat students, helping students apply and generalize skills and strategies from the therapy office to the classroom.
20. While REDACTED class is a 10:1:2 (10 students, one head teacher, two associate teachers) ratio for this current school year, there are currently nine students, including REDACTED. Therefore, REDACTED class includes students who are appropriate peers for him- chronologically, socially, and academically.
33. REDACTED receives Counseling twice weekly, once individually for thirty minutes and once in a dyad for thirty minutes. REDACTED continues to demonstrate gains in his problem-solving and flexible thinking skills. REDACTED shows a more substantial interest in his peers, which has led to her independently initiating with them during play and talking times by asking more related questions. He has also made strides in his emotional awareness and can identify how he is feeling in the moment when regulated. He continues to work on Identifying and expressing his feelings when he is anxious or frustrated. Scaffolding from an adult and prompts to use a coping skill can help him self-soothe. While he continues to grow, his anxiety and attention affect his ability to sustain reciprocal interactions for extended periods. Reminders to identify what is expected and to follow the "group plan" help him.
34. REDACTED receives SLT once weekly for thirty minutes in a dyad and once a week individually. Receptively, REDACTED can answer concrete questions (who, what, where) with increased accuracy. His ability to respond to more abstract questions is emerging, and the use of familiar stories and play facilitate his progress. While REDACTED has become more confident when asked to make a prediction, he continues to benefit from multiple models and increased wait time. He continues to work on making novel predictions (what will happen next in a story, for example) and more complex inferences. Pragmatically, REDACTED can ask his classmates questions and generate comments related to the conversation but requires support such as non-verbal cues such as wait time and an expectant look within larger settings and non-preferred topics.
35. REDACTED receives OT twice weekly individually and once weekly in a group of four for thirty minutes each session. As mentioned in the AG section of this document, REDACTED has difficulty moving and controlling the right side of his body, resulting in weakness and difficulties with coordinated gross motor movements like running and jumping, as well as an asymmetrical gait. His overall hand strength and dexterity have improved, but he is still weak, so small motor tasks like writing and cutting are difficult. He has improved his handwriting skills but continues to work on proper line regard and letter formation. He is working on his precision while cutting and continues to require prompting to use his non-dominant hand to steady the paper. He works on his sensorimotor skills in the sensory gym and has increased his confidence while engaging in gross motor activities.
38. There is regular communication informally between REDACTED team and his parents. At a minimum, the teacher provides a weekly update to recap the week of learning. In addition, there are often daily emails or phone calls between REDACTED parents, teachers, and therapists during challenging times or when extra support is needed. This type of communication happens daily and weekly and is essential to REDACTED growth and overall ability to progress in school and at home.
43. REDACTED was recommended for a health paraprofessional at his last IEP meeting. While this might be necessary for a large public-school building, at REDACTED, the spaces are smaller, and there is much more adult support. Therefore, REDACTED does not need special medical support to attend REDACTED successfully and safely.
45. REDACTED requires twelve-month services to retain the skills taught and to meet his goals. REDACTED regresses significantly in his educational abilities during school breaks and vacations. As witnessed during extended vacations and breaks, REDACTED ability to follow the group plan and recall previously taught information is adversely affected.
46. REDACTED provides REDACTED with an appropriate program, and he is making meaningful progress during the 22-23 school year. (P-M)
On cross examination, the witness testified that she used to work for the Department of Education. (T-67) The witness further conceded that during her time with the DOE, class profiles changed and that there are dozens of “REDACTED” schools. (T-68-9) There was no re-direct examination of the witness. (T-69)
The student’s mother testified that she attended a “CSE” meeting for the student in November 2021. (T-71) The meeting was for an “IEP” for the 21-22 school year and there was no mention of the 2022-2023 school year. (T-71) She did receive a proposed school location letter from the DOE that did not offer a 12-month school year or a 12:1:1 class, which she rejected. (T-75-6) There was no cross examination of the witness. (T-76)
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 2022-2023 school year.
The private school program does not have to be perfect or maximize the student’s potential. (Supra) It just has to provide the student with an educational benefit. (Id.) The standard the Parent has to meet to evidence the “appropriateness” of the private school is not beyond a reasonable doubt, or by a “preponderance of the evidence”, or even by “substantial evidence.” 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 her to benefit from instruction. (See Gagliardo & Frank G., supra) The record here supports such a finding that the private program was an appropriate placement for the student’s 2022-2023 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 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 DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition, costs and expenses, and door-to-door special education transportation to and from the private program for the entirety of the student’s 12-month 2022-2023 school year thereat; 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 2023-2024 school year; and it is further
ORDERED upon the DOE’s DEFAULT 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 2023-2024 school year; and it is further
ORDERED upon the DOE’s DEFAULT 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.
Edgar De Leon
DATED: December 15, 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 Law 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)