New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Parent PARENT 08/15/22 (V)

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

[REDACTED] Parent PARENT 08/25/22 (V)

[REDACTED] DOE Representative DOE 08/25/22 (V)

[REDACTED] Parent PARENT 10/12/22 (V)

[REDACTED] DOE Representative DOE 10/12/22 (V)

[REDACTED] Parent PARENT 12/13/22 (V)

[REDACTED] DOE Representative DOE 12/13/22 (V)

[REDACTED] Parent PARENT 02/03/23 (V)

[REDACTED] DOE Representative DOE 02/03/23 (V)

[REDACTED] Parent PARENT 03/13/23 (V)

[REDACTED] DOE Representative DOE 03/13/23 (V)

[REDACTED] Attorney PARENT 06/01/23 (V)

[REDACTED] Parent PARENT 06/01/23 (V)

[REDACTED] Witness PARENT 06/01/23 (V)

[REDACTED] DOE Representative DOE 06/01/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 07/01/22 PARENT Request 06 pages

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

D. C Findings of Fact and 04/29/21 PARENT 19 Decision IHO Case Number 194293 Psychological Evaluation 01/30/20 PARENT By [REDACTED] 07 pages

E. Psychological Evaluation 12/28/20 PARENT By [REDACTED] 07 pages

F. [REDACTED] Academy N/A PARENT 06 Program Description

G. Enrollment Contract 06/10/22 PARENT H [REDACTED] Academy 09/06/22 PARENT ^[01] Tuition Affidavit 03 pages

J 2022 to 2023 [REDACTED] N/A PARENT

On July 11, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a six (6) 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 01, 2022. The Impartial was held on June 01, 2023. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parents allege that the student’s Individualized Education Program (“IEP”) 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 his educational planning. The Parents served the DOE on June 17, 2022 with their 10 day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (B) At the impartial hearing, the Parent seeks the following relief:

• Tuition direct funding for the student’s attendance at the private school for the 2022-2023 school year.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and submitted no below.

THE PARENT’S CASE

The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The Parent also submitted eleven (14) 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 submitted no documents in evidence. The DOE also failed to cross examine either of the two witnesses presented by the Parent. (T-37-39)

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE.

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

The DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence 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 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 other 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 "[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 The Parents witness, [REDACTED], Director of Speech Language & Pathology at the private school testified on direct via affidavit: 1) [REDACTED] first came to [REDACTED] in February of 2021 at the age of [REDACTED] years old. He has attended [REDACTED] Academy since the last half of the 2020-2021 school year, specifically February 24, 2021. I know [REDACTED] case based upon direct contact with him daily, review of past and current reports and evaluations, and oral reports from his teachers, related service providers, and other staff members/consultants. In addition, during the 2022-2023 school year, I provided speech and language intervention for [REDACTED] as his speech language pathologist at [REDACTED] Academy. 2) [REDACTED] is a [REDACTED]-year-old student eligible for special education and related services under the classification of Autism. He resides in [REDACTED] with his parents, [REDACTED] and [REDACTED], twin brother, and older sister. Prior to his placement at [REDACTED], [REDACTED] received 12.5 hours per week of 1:1 Special Education Itinerant Teacher (“SEIT”) services. He presented with global delays and extreme regulatory issues. The initial diagnosis of ASD was made at the age of 1 ½ years old following which [REDACTED] began receiving Early Intervention services. 3) According to the psychological evaluations conducted by [REDACTED] in January and December of 2020, [REDACTED] presented with significant cognitive delays and functioned at approximately 36-40 months old. He presented with aggressive behaviors, severe echolalic repetitions, and sensory issues. [REDACTED] demonstrated stereotyped and repetitive behaviors consistent with his existing diagnosis of ASD. Dr. [REDACTED] recommended placement in a small, highly structured non-public school for students with ASD where he could receive 1:1 ABA instruction and PROMPT SLT on a daily basis. [REDACTED] also recommended 5 hours per week of home-based 1:1 ABA and 1 hour per week of home-based PROMPT SLT. 4) Based on my personal examination of [REDACTED] and review of his records, it is my opinion, to a reasonable degree of professional certainty, that [REDACTED] developmental profile, his verbal abilities, sensory processing, and academic skills were similar to the needs of many other students diagnosed with ASD enrolled at [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-and-a-half years and continues to meet his needs during the current school year. 5) Since [REDACTED] began the current school year at [REDACTED], he has mastered independently following 5, 2-step directives with multiple components and travel, expressively labeling 10 propositions when verbally asked by a teacher, responding to “what” questions following a short story, decoding short vowel CVC words in isolation, and waiting his turn. He is currently working on touch math, reading “silent e” words, and spelling familiar words. [REDACTED] has displayed more appropriate social interactions with staff and peers. He is provided with visual supports and extra processing time to form appropriate sentences. [REDACTED] continues to be evaluated for higher goals, as his progression increases at continuous rates. 6) [REDACTED] requires a twelve-month placement in a small structured therapeutic environment that can challenge his academic potential and facilitate social interactions while providing an appropriate level of support. At the start of the school year, there was an increase in self-stimulatory behaviors which decreased [REDACTED] engagement throughout the day. Interventions included more frequent sensory diets, structured breaks, and high probability directions to build momentum (non-verbal imitations and one-concept commands). [REDACTED] social interactions also continued to require various prompting methods. To continue making academic and social/emotional progress, [REDACTED] needs an ABA-based school which also uses a combination of DIR/Floortime, and Sensory Integration approaches to learning and to all aspects of his daily living. More importantly, [REDACTED] global deficits were, and continue to be, significant enough to warrant placement in an ABA-based program with 1:1 learning support and instruction throughout the school day. 7) Since [REDACTED] initial admission to the program in February 2021, [REDACTED] has been providing him with a small and highly structured educational setting with individual or small group multisensory teaching instructions and related services necessary to promote and increase his academic, social/emotional, and independent daily living skills. 8) For the 2022-2023 school year, [REDACTED] is placed in a small and highly structured class of 7 students, one special education teacher, one teacher’s assistant and five classroom instructors, and related service providers (therapists) who frequently push in [REDACTED] classroom to facilitate individual academic instruction and social/adaptive skills training. [REDACTED] classmates share similar intellectual, academic, and social/emotional functioning. [REDACTED] classroom teacher for the 2022-2023 school year is [REDACTED] in General and Special Education. 9) Although [REDACTED] has made tremendous progress in the past two-and-a-half years, his self-directed behavior, sensory processing, low attention span, rigidity, and dysregulation continue to impede his learning and social/emotional development. As such, Imagine personnel continues to employ a comprehensive program 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, [REDACTED] is given playful opportunities to engage with peers while given verbal and gestural support as needed. 10) The classroom teacher and 1:1 instructors introduced a variety of thinking and sensory-based games designed to engage [REDACTED] in meaningful and structured play using the basic principles of DIR/Floortime (the importance of affect and emotional interactions between student and teacher). Since some of [REDACTED] interfering behaviors are sensory seeking, Imagine has provided him with a specific sensory diet protocol in order to decrease behavioral issues prior to them occurring. 11) In addition to the 1:1 instructional and behavioral support, Imagine provides [REDACTED] with related services of occupational therapy, speech and language therapy, and mental health in the form of Floortime and Creative Arts Therapy. 12) [REDACTED] has been participating in Floortime and Creative Arts Therapy three times per week to help him strengthen social-emotional capacities to facilitate group participation, collaboration and shared-social problem-solving. [REDACTED] was able to develop a rapport with his therapists, [REDACTED] and [REDACTED]. 13) The [REDACTED] Academy Progress Report for the 2022-2023 school year includes a detailed description and explanation of how [REDACTED] special education and related services address [REDACTED] unique needs both programmatically, and in a manner narrowly tailored to his 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 K. (L)

The DOE did not cross-examine the witness. (T 37-39) 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.

The Parent’s evidence shows the Progress the student has made throughout the year. (K)

There is nothing in the record that supports 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 at the private school for the time the student attended the private school during the 2022-2023 school year.

ORDERED that the CSE shall forthwith reconvene and consider all of the student’s evaluations and any other relevant information and produce an 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: August 7, 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 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)

Footnotes

[01] Academy Class Schedule K [REDACTED] Academy 02/15/23 PARENT 09 Report L Affidavit and Curriculum 05/23/23 PARENT 20 Vitae of [REDACTED], MS CCC-SLP,TSSLD M Affidavit of Parent 05/23/23 PARENT 05 [REDACTED] N Parent's Tax Return 07/08/22 PARENT 02 documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision 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 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 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} 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, that the student was denied a FAPE for the 2022-2023 school year.