Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 227652

NYS Identifier Number: 574842

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 09/09/22, 10/13/22, 12/13/22

01/30/23, 03/01/23, 04/25/23

07/06/23 & 09/14/23

Actual Record Close Date: 11/01/2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

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

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

[CONFIDENTIAL] Attorney PARENT 10/13/22 (V)

[CONFIDENTIAL] DOE Representative DOE 10/13/22 (V)

[CONFIDENTIAL] Attorney PARENT 12/13/22 (V)

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

[CONFIDENTIAL] Attorney PARENT 01/30/23 (V)

[CONFIDENTIAL] Attorney PARENT 03/01/23 (V)

[CONFIDENTIAL] DOE Representative DOE 03/01/23 (V)

[CONFIDENTIAL] Attorney PARENT 04/25/23 (V)

[CONFIDENTIAL] Parent PARENT 04/25/23 (V)

[CONFIDENTIAL] DOE Representative DOE 04/25/23 (V)

[CONFIDENTIAL] Attorney PARENT 07/06/23 (V) [CONFIDENTIAL] DOE Representative DOE 07/06/23 (V) [CONFIDENTIAL] Attorney PARENT 09/14/23 (V)

[CONFIDENTIAL] Parent PARENT 09/14/23 (V)

[CONFIDENTIAL] DOE Representative DOE 09/14/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 07/01/22 PARENT 12 pages

B. Ten-Day Notice with CSE 06/16/22 PARENT Information 04 pages

C. Pendency Agreement 08/29/23 PARENT 02 pages

D. IESP 08/18/2 PARENT E 2022/2023 REDACTED N/A PARENT 02 Schedule 21 pages

F. REDACTED 03/31/23 PARENT 29 Treatment Plan G REDACTED 03/31/23 PARENT 80 Progress Graphs

H. Affidavit of REDACTED 06/12/23 PARENT 05 pages

J. I BCBA Certification of 12/31/19 PARENT 01 REDACTED Speech Language 04/22/23 PARENT Progress Report 04 pages

K. Affidavit of REDACTED 06/16/23 PARENT 04 pages

L. Speech-Language N/A PARENT Certification of REDACTED 01 pages

M. Affidavit of REDACTED 06/08/23 PARENT 03 pages

N. Parent Tax Return N/A PARENT 2022 02 pages

On. July 12, 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 (11) year old student attending a school within the New York City Department of Education (“DOE”) District 31. The Parents filed a Due Process Complaint (“DPC”) on or about July 01, 2022. Impartial hearings were held on September 14, 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”) dated March 8, 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 his educational planning. The Parent alleges that CSE did not convene an IEP meeting for the 2022-2023 school year. Parent alleges that the last IESP meeting was held on August 18, 2021. The Parent informed the CSE of their disagreement with the recommended program, which consisted of 10 periods of SETSS per week, SLT 5x per week, OT 4x per week, and PT 3x per week. Parent informed the CSE that the student needed an IEP, not an IESP, because she needs a full-time special education program. (DPC)

At. the impartial hearing, the Parent seeks the following relief: • Funding for 37 hours per week of ABA instruction, 3 hours per week of BCBA supervision, 5 hours per week of 1 speech-language therapy using the PROMPT method for the 2022-2023 12-month school year at an enhanced rate. • A Bank of 230 hours of Compensatory services in the form of Occupational Therapy at an enhanced rate. • Occupational Therapy 5 x60 and Physical Therapy 3x60 for the 2022-2023 12-month school year at an enhanced rate. THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and did not submit any documents into evidence. (T-36) 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 (3) witness 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 did not cross any of the 3 affiants. The Parent also submitted (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 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, which 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) 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, 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 401 pages

at. 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 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). COMPENSATORY SERVICES There is a request for compensatory educational services in this case and 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)

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following:

Parents witness REDACTED, the student’s therapist testified via affidavit on direct that:

1. “For the 2022-23 school year, I began providing five sixty-minute sessions (5x60) of 1:1 Speech and Language services per week to REDACTED. I began providing services on July 1, 2022, and will continue to provide Speech and Language services for the remainder of the school year, until June 30, 2023.

2. At the beginning of the 2022-23 school year, I conducted an informal observation of REDACTED before starting to provide therapy. I did not conduct any formal assessments for the 2022-23 school year, as I am familiar with her abilities and performance.

3. I communicate with REDACTED parents on a daily basis. Every four to six weeks, I speak with REDACTED ABA instructor. We exchange information about REDACTED progress and areas of improvement. If I have any concerns about her behaviors, I will note it for the ABA provider so I can understand why she is behaving a certain way, or, if they do not know the function of that behavior, they can integrate it into REDACTED program.

4. In my opinion, it is important that REDACTED continues to receive five 60-minute sessions of PROMPT-based Speech Therapy per week, over a 12-month school year, as she requires constant reinforcement and modeling in order to make progress. When there are short gaps in services, REDACTED quickly regresses. She requires a highly structured and repetitive program due to her inability to self-monitor. Even if she learns a skill, she has difficulty using it independently without this degree of structure and repetition.

5. Throughout the 2022-2023 school year, I charged $170 per hour for PROMPT-SLT. My rate for the 2023/24 school year will be $175.00 an hour. My rate is commensurate with that of other providers in New York City.

6. I began providing the above-referenced services on July 1, 2022, and will provide such services through and including June 30, 2023.

7. The total anticipated cost of the above-referenced services is $44,200.00 for five sixty-minute PROMPT-SLT sessions per week over the course of a 52-week school year. “ (Parent’s Exhibit-“L”)

The District did not cross-examine the witness.

Parent’s witness, REDACTED, the student’s ABA provider, testified on direct via affidavit as follows,

1. “Since the beginning of the 2022-2023 school year, REDACTED has been providing REDACTED (DOB: REDACTED ) with 40 hours of 1:1 ABA services per week.

Specifically, 37 hours per week of these 1:1 ABA services are provided by an ABA provider, and 3 hours per week of these 1:1 ABA services are provided by a coordinator who supervises REDACTED other ABA providers and coordinates her overall ABA program.

2. As the Founder and Director of REDACTED, I am familiar with REDACTED educational program because I work with her ABA coordinator. I have access to all data and am available to provide behavioral planning and curriculum support they may need.

3. REDACTED currently charges one hundred and fifty dollars ($150) per hour for coordinator services and one hundred dollars ($100) per hour for ABA services.

4. REDACTED commenced providing the above-referenced services on July 1, 2022, and is available to continue providing such services through and including June 30, 2023.

5. The total anticipated cost of the above-referenced services is two hundred and fifteen thousand eight hundred dollars ($215,800), representing one hundred and ninety-two thousand four hundred ($192,400) for 1:1 ABA services provided by an ABA provider and twenty-three thousand four hundred dollars ($23,400) for 1:1 ABA services provided by a coordinator.

6. Up to date, I have only received payments for the services provided to REDACTED under pendency by the Department of Education. I have received payment for services rendered from July 2022 to February 2023 in the total amount of $93,350 ($78,500 for ABA and $14,850 for ABA Supervision). The student’s parents have not made any payments for the services.

7. During her 12-month program, we continue to reiterate programs that she has previously mastered, including academics, social skills, money management and pre-vocational skills. In my opinion, it is necessary that she receive 37 hours of 1:1 ABA and 3 hours of ABA Supervision per week over the course of a 12-month (52 week school year) because her retention of previously learned concepts is severely low and she requires constant repetition and maintenance, or she will quickly lose these skills.

8. In my opinion, it is important for REDACTED to continue receiving 37 hours 1:1 direct ABA because she needs that extra attention due to the severity of her communication and social deficits.

9. It is important for BCBA to supervise REDACTED ABA program as it is a workintensive task to keep track and analyze the data taken down by the ABA providers. For instance, REDACTED has up to 25 graphs to review on a weekly basis.

10. It is important that REDACTED continues to receive BCBA supervision in order for her to make progress academically.

11. I believe that an ABA provider cannot provide the same type of supervision that a BCBA can because REDACTED needs someone that has research-based knowledge so that they can come up with innovative ways to help her. The providers need to have leadership with the expertise that can keep everyone on the same page and derive important data from the time spent with REDACTED. An experienced ABA provider does not possess the level of skill or knowledge necessary to monitor and evaluate trends in data, problem solve, and select appropriate tactics to develop, direct, supervise, and coordinate an effective ABA program for REDACTED the way a BCBA can. A BCBA coordinator and supervisor is a key player in any ABA program because of the significant amount of time it takes to evaluate all data, problem solve, modify strategies, write and monitor programs, direct and coordinate with the other providers and parents and train them as needed.

12. Without the intervention of a BCBA, REDACTED is likely to have behavioral challenges, which can include self-injurious behaviors, as a result of frustration and confusion when their ABA programs are not consistent across providers. Without a BCBA to ensure that her ABA program is highly cohesive, REDACTED is at risk of regression or of only making trivial progress.

13. REDACTED has made continued and steady progress while under my supervision and she continues to require the same 12-month program. Since the start of the 2022-2023 school year, REDACTED development has reduced. She has become more independent with developing her scheduling and requesting things that she wants. While she still struggles to reciprocate conversations and is better able to do so in familiar topics, she understands the intent. Additionally, she is able to complete various ADL tasks, such as folding, without elopement, but she still requires supervision because she will consume objects.

14. We are in constant communication with REDACTED parents regarding her progress. We also communicate with her Speech-Language Pathologist approximately once a month.

We collaborate on developing and implementing her program goals. We share goals regarding functional communication (i.e., intelligibility of speech, reciprocating and initiating conversations etc.) Similarly, if the SLT has a goal that requires a dense schedule of reinforcement, we are able to work on that during her school day.

15. I am familiar with how the Department’s SETSS providers operate and I do not believe that SETSS instruction would be an appropriate program for REDACTED as it would be detrimental to her current progress if she were not to receive individualized instruction by trained professionals using ABA methodology throughout the entire school day.” (Parent’s Exhibit- “I”)

The District did not cross examine the witness.

Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited compensatory education at an enhanced rate. (SRO No. 04-049); and Whereas there being nothing in the record that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and Whereas the DOE’s default constitutes a concession of a denial of FAPE

Now, therefore, it is hereby

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded Funding for 37 hours per week of ABA instruction, 3 hours per week of BCBA supervision,^[5] hours per week of 1 speech-language therapy using the PROMPT method for the 2022-2023 12-month school year at an enhanced rate.

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded Funding Occupational Therapy

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded Compensatory services in the form of A Bank of 230 hours of Compensatory services in the form of Occupational Therapy at an enhanced rate to expire within 18 months of this order.

ORDERED that the DOE is ordered to reimburse and or fund the students books, materials or equipment that the student requires as part of her program for the 2022-2023 school year.

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: November 20, 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)

Footnotes

[5] x60 and Physical Therapy 3x60 for the 2022-2023 12-month school year at an enhanced rate.