New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 227558

NYS Identifier Number: 574742

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 08/15/22, 10/06/22, 11/09/22

& 12/08/2022

Actual Record Close Date: 01/17/2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

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

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

[CONFIDENTIAL] Attorney PARENT 10/06/22 (V)

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

[CONFIDENTIAL] Attorney PARENT 12/08/22 (V)

[CONFIDENTIAL] Mother PARENT 12/08/22 (V)

[CONFIDENTIAL] Witness PARENT 12/08/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

A Due Process Complaint 07/10/22 PARENT 06

B Ten-Day Notice 06/17/22 PARENT 03

C Findings of fact and 01/02/21 PARENT 15

Decision for Case

Number 192698

D Findings of fact and 05/27/22 PARENT 14

Decision in Case

Number 216226

E Pendency Agreement in 08/09/22 PARENT 02

F REDACTED Academy N/A PARENT 06

Program Description

G REDACTED Academy N/A PARENT 03

Remote Learning

Protocol

H Enrollment Contract 06/10/22 PARENT 02

I REDACTED Academy 22/23 PARENT 01

Class Schedule

J REDACTED Academy 11/29/22 PARENT 01

Attendance Report

K REDACTED Academy 11/29/22 PARENT 01

Tuition Affidavit

L REDACTED Academy 06/08/22 PARENT 15

Progress Report for The '21/'22 School

Year

M Psychological 12/06/19 PARENT 22

Evaluation by

REDACTED

N Curriculum Vitae N/A PARENT 08

O Positive Behavior 02/05/22 PARENT 04

Support Plan for

2021-2022

P Affidavit of REDACTED N/A PARENT 21 in Education with

Curriculum Vitae

Q Parent's Tax Return N/A PARENT 02

Form

R Affidavit of REDACTED 12/01/22 PARENT 04

On July 18, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of an REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District 21. The Parents filed a Due Process Complaint (“DPC”) on or about July 1, 2022. Impartial hearings were held on August 15, 2022, October 6, 2022, November 9, 2022 and December 8, 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 April 28, 2022, is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. The Parents allege that the recommendations were the same from the previous year as well. The IEP recommended a 12-month program, with 6:1:1, with related services of counseling, occupational therapy, speech language therapy, counseling, and parent counseling and training. The student’s lengthy psychological evaluation has the following diagnosis, “Attention deficit hyperactivity disorder-combined presentation and Autism Spectrum Disorder. (M-16)

The Parent’s state, that they served the DOE with notice of the student’s unilateral placement at a private school on June 17, 2022. (B)

At the impartial hearing, the Parent seeks the following relief:

• • Direct Payment and related services for the tuition for the student’s attendance at the private school for the 2022-2023 school year.
• • Transportation reimbursement The Parents’ DPC having been duly filed 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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final “impartial hearing” before this IHO on December 08, 2022 and this decision being made not on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f],and Whereas the Parent appeared with counsel and the DOE failed to appear or provide any communications as to why anyone was unable to appear on their behalf; and Whereas the matter proceeded to essentially an “inquest” on the Parent’s request for relief and a proposed “Final Order” being based upon the Parent’s uncontroverted testamentary and documentary submissions (Id.);

DOE DEFAULT

Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2022-2023 school year 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 relief she has requested.

THE PARENT’S CASE The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The Parent also submitted (18) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf and did not submit any documents in evidence.

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

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence concerning the appropriateness of the private school is as follows:

The DOE’s default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2022-2023 school year.

The student’s lengthy and detailed psychological evaluation submitted by the Parent, was undisputed by the DOE. (M)

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction, and the students has progressed during her time there as per the students’ progress reports. (L) The Executive Director and Principal at the student’s unilateral placement school, has noted her progress within their school. According to the witnesses affidavit on direct.

• • “Based on my personal examination of REDACTED and review of her records, it is my opinion, to a reasonable degree of professional certainty, that REDACTED developmental profile, her verbal abilities, sensory processing, and academic skills were similar to the needs of many other students diagnosed with ASD enrolled in REDACTED. It is also my opinion, to a reasonable degree of professional certainty, that REDACTED has been an appropriate placement for REDACTED for the past two years and continues to meet her needs during the current 2022-2023 school year. Since REDACTED has attended REDACTED Academy, she has mastered letter id, number id, following directions and decoding cvc words in the context of stories. She is currently acquiring phonemic awareness skills, including letter sound correspondence and word families. She started as a single word communicator and now uses full sentences approximately 30-50% of the day. She uses a SGD to help organize and build her sentences which she then verbalizes. She can use attributes, verbs and modifiers in her speech. REDACTED is independent in following all classroom routines when motivated. In terms of literacy skills, she can listen to a story, respond to “wh” questions given visual cues and point to characters pictured in the text.
• • REDACTED requires a twelve-month placement in a small structured therapeutic environment that can challenge her academic potential and facilitate social interactions while providing appropriate level of support. REDACTED disruptive and non-complaint behaviors significantly interfere with her learning in the classroom. If left unattended even for a short period of time, REDACTED withdraws from the learning process and engages in scripting and self-directed play. Her most problematic behavior was clothing removal, however, at this time that behavior is now a near zero rate due to the DRO (Differential Reinforcement of Other) in place. She does engage in other tantrum behaviors infrequently. The target behavior at this point in time in non-compliance or refusal to follow directions. To continue making academic and social/emotional progress, REDACTED needs an ABA-based school which is also using a combination of DIR/Floortime, and Sensory Integration approaches to learning and to all aspects of her daily living. More importantly, REDACTED global deficits were, and continues to be, significant enough to warrant placement in an ABA-based program with 1:1 learning support and instruction throughout the school day.
• • Since REDACTED initial admission to the program for the 2020-2021 school year, REDACTED has been providing her with a small and highly structured educational setting with individual or small group multisensory teaching instructions and related services necessary to promote and increase her academic, social/emotional, and independent daily living skills.
• • For the 2022-2023 school year, REDACTED is placed in a small and highly structured class of five (5) students, one special education teacher, several classroom instructors, and related service providers (therapists) who frequently pushed in REDACTED classroom to facilitate individual academic instruction and social/adaptive skills training. REDACTED classmates shared similar intellectual, academic, and social/emotional functioning. REDACTED classroom teacher for the 2022-2023 school year is REDACTED, who is supervised by REDACTED, BCBA, LBA. She is an experienced and licensed BCBA trained in ABA and DIR/Floortime.
• • Although REDACTED has made tremendous progress in the past three years, her self-directed behavior, sensory processing, low attention span, rigidity, anxiety, and dysregulation continue to impede her learning and social/emotional development. As such, REDACTED personnel continues to employ a comprehensive programming consisting of positive behavioral supports and services such as praise and encouragement, visual schedules, short learning breaks, access to preferred staff, intensive sensory diet to reduce environmental triggers and enable REDACTED to participate in learning activities for longer periods of time. Additionally, pre-viewing social stories, topic boards and her AAC device increase ability to stay on task. At the beginning of the 2021-2022 school year, we introduced REDACTED to a new behavioral protocol that includes a Differential Reinforcement of Other Behaviors (“DRO”) procedure for clothing removal. This protocol has been and continues to be successful in reducing instances of disrobement in the classroom to almost never.

51. The REDACTED Academy Progress Report for the 2022-2023 school year includes a detailed description and explanation how REDACTED’s special education and related services address REDACTED unique needs both programmatically, and in a manner narrowly tailored to her individual goals. The Progress Report is developed based on the information discussed with REDACTED classroom teacher, 1:1 instructors, and related service providers. I can attest to the accuracy of the information contained in this report offered into evidence as Parent Exhibit “L.” The Student’s Progress Reports were also submitted into evidence, and they show the students’ progress through his semesters for the 2022-2023 school year. (L) 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 2022-2023 school year.

SPECIAL EDUCATION TRANSPORTATION SERVICES

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

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

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

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall directly pay for the cost of the student’s tuition and related cost and expenses at the private school, including transportation services for the time the student attended the private school during the 2022-2023 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2023-2024 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: January 25, 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)