Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 227649

NYS Identifier Number 574839

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 08/15/22, 10/05/22, 11/14/22

12/09/22, 03/01/23, 04/20/23

& 06/21

Actual Record Close Date: 10/01/2023

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] DOE Representative DOE 10/05/22 (V)

[CONFIDENTIAL] Attorney PARENT 11/14/22 (V)

[CONFIDENTIAL] DOE Representative DOE 11/14/22 (V)

[CONFIDENTIAL] Attorney PARENT 12/09/22 (V)

[CONFIDENTIAL] DOE Representative DOE 12/09/22 (V)

[CONFIDENTIAL] Attorney PARENT 04/20/23 (V)

[CONFIDENTIAL] DOE Representative DOE 04/20/23 (V)

[CONFIDENTIAL] Attorney PARENT 06/21/23 (V)

[CONFIDENTIAL] Mother PARENT 06/21/23 (V)

[CONFIDENTIAL] Witness PARENT 06/21/23 (V) [CONFIDENTIAL] DOE Representative DOE 06/21/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing Request 07/01/22 PARENT 04 pages

B. Amended Impartial 12/18/22 PARENT Hearing Request 04 pages

C. Ten-Day Notice Letter 06/16/22 PARENT 02 pages

D. Letter to CSE 08/23/22 PARENT 02 pages

E. Letter to CSE 11/07/22 PARENT 02 pages

F. Reading Progress Report 03/2023 PARENT 06 pages

G. Behavior Social Progress 03/2023 PARENT Report 02 pages

H. Counseling Progress 03/2023 PARENT Report 02 pages

I. Executive Functioning 03/2023 PARENT 01 Progress Report

J. Social Skills Progress 03/2023 PARENT Report 01 pages

K. OMITTED

L Speech Progress Report 03/2023 PARENT 02

M Program Description 2022/2023 PARENT 01

N Attendance 04/25/23 PARENT 01

O Enrollment Contract 08/14/22 PARENT 02

P Pendency Agreement 10/12/22 PARENT 02

Q Affidavit of Payment 06/14/23 PARENT 01 R Behavior Plan 2022/2023 PARENT 08

S Affidavit of the Parent 06/2023 PARENT 06

T Affidavit of REDACTED 06/20/23 PARENT 14

U REDACTED Daily Schedule N/A PARENT 01

1 Meeting Notice on 02/02/22 DOE 03

Special Education CSE

2 Individualized 02/08/22 DOE 30

Education Program

3 Minutes of CSE Meeting 02/08/22 DOE 02

4 Prior Written Notice/Notice 06/01/22 DOE 04

Of Recommendation

5 School Location Letter 06/2022 DOE 02

6 Parent Notification of 06/01/22 DOE 02

Participation in the New York State

Alternate Assessment

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 n REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District 20. The Parents filed a Due Process Complaint (“DPC”) on or about July 01, 2022. Impartial hearings were held on June 21, 2023. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

The Parents allege that the student’s previous 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 IEP for the 2022-2023 school year recommends a Special Class 6:1+1 at a District 75 school with related services: Counseling (1x30, 1:1 and 1x30, group), Occupational Therapy (3x30, 1:1), Parent Counseling and Training (4x60, group), and Speech-Language Therapy (2x30, )(Group). Moreover, the Parent alleges that the CSE team was not properly constituted at the meeting. (Parent’s DPC). They state that they served the DOE with notice of the student’s unilateral placement at a private school on June 16, 2022. (Parent’s ExhibitC”)

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

• Tuition reimbursement for the student’s attendance at the private school for the 2022-2023 school year minus the portion that consists of religious instruction • Reimburse the Parent and/or the private school, for the monies not paid under pendency pursuant to the parties agreement on pendency.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and submitted six 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 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]. On the hearing date, the DOE stated that they would not cross the two affiants. (T-16 ) The Parent also submitted (21) 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.

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 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)

The DOE did not present a case-in-chief and did not controvert the documentary or testamentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent and the District to be credible and uncontroverted in this case. I find the parent’s testamentary evidence to be credible.

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} 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 Parents evidence shows that the student’s unilateral placement school provides individualized instruction and the students has progressed during his time there as per the direct testimony via affidavit by the students special education teacher. (Parent’s Exhibit’s-F,G,H,I,J,K,L)

The Parent’s school witness, REDACTED who is the Head Principal at the private school, testified via affidavit on direct as follows: “I am familiar with a student named REDACTED, as he began attending REDACTED in September 2022 for the 2022-2023 school year. During the 2022-2023 school year, I had the opportunity to interact with, and observe REDACTED on a daily basis. During the 2022-2023 school year, REDACTED was an eight-year-old child who has been classified by the CSE as a student with Autism. REDACTED is diagnosed with an Autism Spectrum Disorder, as well as ADHD. He also has a history of Tetralogy of Fallot which is a rare heart defect and gross motor and fine motor deficits. REDACTED presents with academic and language delays, as well as significant interfering and maladaptive behaviors such as inappropriate, impulsive and aggressive behaviors. REDACTED also exhibits a level of distractibility which impacts his ability to follow direction and learn. He presents with speech/language and sensory processing delays that affect his ability to communicate and process information effectively for learning. REDACTED primary obstacles are his maladaptive behaviors and social/emotional deficits.

I observed REDACTED in his classroom every day during the 2022-2023 school year, so I am very familiar with the class and its composition. During the 2022-2023 school year, he was placed in a classroom with a total of seven (7) students (including REDACTED), one (1) lead teacher, and 2 teacher’s assistants. At all times, there were at least three (3) staff members in the room. As such, we were able to provide a considerable amount of individualized behavior support, as well as 1:1 and very small group instruction. This class was chosen for REDACTED because it provided him with appropriate social and behavioral peers; the other students were all within a one (1) year age range, and had similar social/behavioral needs, allowing us to implement appropriate goals on both an individual and classwide level. REDACTED class was taught by REDACTED, a NYS licensed teacher with a masters degree in special education. The teacher assistants were REDACTED, finishing her bachelors in psychology and REDACTED, who is finishing her bachelors in liberal arts. All of the classroom staff was supported and supervised by myself and the other members of REDACTED administrative team, as described above.

As our program is designed to address the needs of students facing behavioral and social/emotional challenges, like REDACTED, the faculty are trained in our behavior program, including teachers, assistants, paraprofessionals, and specialty staff. The behavior program for our lower division is based in ABA and provides a tremendous amount of feedback for both positive and negative behaviors. In addition, adapted treatment components from Summer Treatment Program, by Dr. REDACTED was used to develop this program. Under our behavior plan, the day is divided into four periods. Each student has the opportunity to earn 1 sticker per period, which relates to a certain number of points. At the start of the year, a baseline number of points is established for each student; then, individual goals are created. These goals relate to the number of points a student must earn each period, each day. Students’ goals are updated weekly, based on a formula, which is reviewed by the student’s team (which includes their classroom teacher and the administration). REDACTED, when he first came to REDACTED in the beginning of the 2022-2023 school year, was disrespectful to authority figures, disruptive and silly in class, and not able to complete work. He also exhibited inappropriate and physically and verbally aggressive behavior on the bus. These behaviors were a primary concern with regard to REDACTED overall functioning during the 2022-2023 school year. At this point in the 2022-2023 school year, due to the implementation of an appropriate, effective behavioral plan and significant support, REDACTED is respectful, able to sit in the classroom and complete all classroom work and activities. REDACTED has learned how to participate in all group activities, be a team player and have a back and forth conversation with a peer. (Please refer to the Behavioral Plan and progress report attached as part of Parents’ Disclosure.)

In addition to the behavior plan, REDACTED created individualized behavior/social goals for REDACTED to meet. A detailed list of these goals can be found in Parent’s Disclosure. REDACTED goals were formally measured three times this year to ensure he is making progress. In order to address REDACTED significant maladaptive behavior, REDACTED was provided with a behavioral therapist, REDACTED, BCBA, assigned to REDACTED to prevent maladaptive behaviors at school, on the bus and at home during the 2022-2023 school year. REDACTED social/emotional needs are addressed by our behavior plan, and by providing him with direct social skills instruction. Our school utilizes the Social Thinking Curriculum, developed by REDACTED. The Social Thinking Curriculum focuses on teaching social skills through a cognitive method of understanding. For example, we teach students to make eye contact, and to look at someone when talking to them; this is accomplished by discussing how they feel when someone looks at them and when someone does not. All faculty at REDACTED are trained in the Social Thinking Curriculum, and each class receives daily instruction in social skills (referred to as “Social Thinking” on the daily schedule). At REDACTED during the 2022-2023 school year, REDACTED received social skills instruction by REDACTED, M.S. CCC-SLP. At the beginning of the school year, REDACTED was noted to like conversing and interacting with peers and teachers. However, it was noted that when the social demands increase REDACTED had difficulty determining appropriate behavior. During the 2022-2023 school year, REDACTED participates in social skills groups on a daily basis. In sessions, the Social Thinking Curriculum Volume 1 & 2, REDACTED was utilized, as well as Skills Connections, REDACTED; The Zones of Emotion Regulation, REDACTED; Quizlet; Interacty; Kahoot; and digital books & games; crafts; and teacher made worksheets to maintain interest and reinforce concepts. During the year, REDACTED learned he skills of analyzing and engaging in a group plan, utilizing flexible thinking, perspective taking, and conversational skills. Additionally, REDACTED was learning how to regulate his emotions to improve his independent and social skills. REDACTED made improvements in his social skills during the 2022-2023 school year and adjusted well to school with his behavioral plan and social skills program in place. (Please refer to Parents’ Exhibits, Exhibit E, Educational Progress Report.) All the staff who works with REDACTED meet monthly for formal team meetings. In addition, the related service providers pushed into the classroom once or twice a week to observe lessons, provide feedback, and ensure carryover.

I have had an opportunity to review the February 2022 IEP, which I find to have been inappropriate and inadequate to meet REDACTED needs for the 2022-2023 school year. The IEP mandates a 6:1+1 program in a District 75 School. The IEP fails to provide for appropriate social/emotional supports, including direct social skills instruction and an appropriate behavioral management program despite REDACTED long history of behaviors, which interfere with his learning and functioning. The IEP recommends that a Behavioral Intervention Plan is needed, but did not create one. There was no paraprofessional provided with regard to REDACTED behavioral needs. There was also no Functional Behavioral Analysis (“FBA”) conducted, despite REDACTED known history of maladaptive behavior. Additionally, the February 2022 IEP fails to accurately identify REDACTED management needs, including behavioral and social/emotional needs. The IEP also does not provide sufficient goals to address REDACTED needs. For instance, there are no goals with regard to inappropriate behavior on the bus, which was a significant concern during the 2022-2023 school year. Furthermore, the goals that are provided are too vague, overly broad and not appropriately individualized to REDACTED. REDACTED was an appropriate program for REDACTED for the 2022-2023 school year that provided REDACTED with the individualized and small group instruction and support he required to address his academic, social/emotional, attention/concentration, behavioral and related service needs. REDACTED provided an individualized program tailored to meet REDACTED needs, including a comprehensive Behavioral Intervention Plan. REDACTED made progress at REDACTED during the 2022-2023 school year because he was provided with sufficient individualized attention and comprehensive support in a nurturing, small school environment, which provided a foundation for learning and allowed him to make progress. “ (Parent’s Exhibit-T) 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.

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 either reimburse the Parent, and/or directly pay for the cost of the student’s tuition (not including the portion for religious instruction) related cost of related services at the private school for the time the student attended the private school during the 2022-2023 school year; and it is further ORDERED that the DOE shall payout to the Parent the remaining portions that have not been paid out under pendency for the Pendency agreement dated October 12, 2022 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: October 30, 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)