New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 575107 - NYC: 227892

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 09/13/22 (V)

[CONFIDENTIAL] DOE Representative DOE 09/13/22 (V)

[CONFIDENTIAL] Attorney PARENT 09/19/22 (V)

[CONFIDENTIAL] DOE Representative DOE 09/19/22 (V)

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

[CONFIDENTIAL] Law Clerk PARENT 11/09/22 (V)

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

[CONFIDENTIAL] DOE Representative DOE 11/09/22 (V)

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

[CONFIDENTIAL] Law Clerk PARENT 12/08/22 (V)

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

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

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Parent Hearing Request 07/05/22 PARENT 07 pages

B. IEP 03/02/22 PARENT 38 pages

C. PWN Notice of 04/27/22 PARENT Recommendation 04 pages

D. Email from CBST 05/05/22 PARENT 01 pages

E. Notice letter with 06/16/22 PARENT Receipts, Responses 06 pages

F. [REDACTED] Program N/A PARENT Description 01 pages

G. [REDACTED] Enrollment 06/30/22 PARENT 06 Contract

H. [REDACTED] Speech-Language 05/22 PARENT Progress Report 04 pages

I. [REDACTED] OT Progress 06/22 PARENT Report 04 pages

J. [REDACTED] PT Progress 06/01/22 PARENT Report 02 pages

K. [REDACTED] ABA classroom 06/22 PARENT 04 Progress Report

L. [REDACTED] Tuition Affidavit 07/27/22 PARENT M REDACTED N/A PARENT 03 Resume N REDACTED Resume N/A PARENT 02 01 pages

O. [REDACTED] 05/05/22 PARENT 02 Group Rate Sheet P [REDACTED] 06/14/22 PARENT 12 Group Progress Report

Q. Affidavit of REDACTED 08/05/22 PARENT 03 pages

R. Affidavit of REDACTED 10/31/22 PARENT 03 pages

S. Affidavit of Dr. REDACTED 11/02/22 PARENT 05 pages

I. E-Mail Dated 11/10/22 IHO November 10, 2022 01 pages

II. E-Mail Dated 11/11/22 IHO November 11, 2022 01 pages

III. E-Mail Dated 11/14/22 IHO November 14, 2022 01 pages

IV. E-Mail Dated 11/14/22 IHO November 30, 2022 01 pages

On. July 13, 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 [REDACTED] year old student attending a private school and the New York City Department of Education (“DOE”) District [REDACTED]. The Parents filed

a. Due Process Complaint (“DPC”) on or about July 5, 2022. Impartial hearings were held on September 13, 2022, September 19, 2022, November 9, 2022 and December 8, 2022.

A. date of December 08, 2022, was agreed upon by the parties via e-mail. Parents counsel subsequently sent out an email requesting an interpreter for the hearing date and cc’d all parties. (IHO Exhibit “I-IV”) The hearing on the merits commenced on December 08, 2022 at approximately 11:08 a.m. The District failed to appear and the hearing commenced in their absence. (T 27-28) Once the hearing commenced the District appeared late and stated that they were appearing late because of a mis calendaring error and were unaware that the hearing commenced at 11:00 am. (T 43-7)

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 02, 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 IEP recommended

a. 6:1:2 classroom in a recommended non public school. The DOE failed to place the student in an appropriate placement. However, the DOE recommended a 12:1:1 class in District [REDACTED]. (B) The Parent’s state that they served the DOE with notice of the student’s unilateral placement at a private school on June 16, 2022. (A)

At. the impartial hearing, the Parent seeks the following relief: • Tuition funding for the student’s attendance at the private school for the 2022-2023 school year and related services including transportation services to and from the private school. • ABA at home services of 10 hours per week at a rate not to exceed $300.00 per hour. THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and submitted (2) documents in evidence that were duplicative of the Parent’s evidence. (T-50 ) 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) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On December 08, 2022, the DOE stated that they would not cross and of the three affiants. (T-48) The Parent also submitted (24) 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 (2) documents in evidence that were duplicative of Parents exhibits. (T-50) 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 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 c0ircumstances, 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 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, 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 DOE

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 2022-23 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, [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 522 pages 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 Parent testified that “In early January 2021, REDACTED began attending the REDACTED, a private school.

1. Since REDACTED began attending REDACTED, I have seen him make progress in many skill areas.” (Q-1) “On approximately June 24, 2022, I received a call from someone at REDACTED , but the person who called only spoke English. I informed the staff member that I needed someone who speaks [REDACTED]. Several days later, the school called back with a [REDACTED] speaker. The two REDACTED staff members asked me to provide information about REDACTED. I explained REDACTED cannot toilet independently when he has a bowel movement, he requires speech therapy, physical therapy, applied behavior analysis (ABA) and occupational therapy. I also informed the staff members that REDACTED does not speak in full sentences. I asked for information about the placement and was not provided with any information. The staff members informed me that REDACTED was too low functioning for their program. I never received any further correspondence from REDACTED or any other placement. (Q-1) The Parents evidence shows that the student’s unilateral placement school provides individualized instruction, and the student has progressed during his time there as per the students’ progress reports. (H,I,J&K) The Program Director at the student’s unilateral placement school, has noted his progress within their school.

1. REDACTED is a twelve-month student and began the 2021-2022 school year with REDACTED in July 2021.

2. REDACTED program at REDACTED includes both small group and one-to-one instruction throughout the school day.

3. REDACTED is assigned to one of six 1:1 instructor in his classroom throughout the day, rotating every 1.5 hours. 1:1 instructors are Registered Behavior Technician (“RBT”) or RBT candidates (in training), trained in ABA via RBT required 40-hour coursework and assessed by myself as RBT coordinator. Throughout the day, 1:1 instructors collect data on REDACTED behavior during individualized academic learning, group learning, and social skills training, along with collecting data on disruptive and challenging behaviors such as mouthing his hands and/or objects and vocalizing repetitive statements. In addition, 1:1 instructors provide appropriate prompts, redirection, and maintain and adjust the reinforcement schedule as needed throughout all activities, including lunch and recess.

4. Data is collected on skill acquisition programs (math, reading, etc.), social skills (turn taking, conversations, cooperative play), and instances of disruptive behavior (mouthing his hand or other objects, engaging in non-contextual repetitive statements, self-injury, property destruction, etc.) using a data collection program CentralReach that operates on an ipad used by the 1:1 instructors. Independent responses are distinguished from prompted responses for skill acquisition program in order to determine mastery or needed revisions ion programs, and frequency counts are recorded for disruptive behavior to detect increases or decreases in the behavior.

5. There are 6 students in REDACTED class including himself. Students are grouped based on similar academic ability, similar ability to attend and learn in a group, and similar verbal and social skills. The students in REDACTED class range from 10 to 13 years old. They interact during group activities such as art and movement, scheduled during most days, during lunch and recess, and during community outings to the park, local stores, or field trips. 1:1 instructors facilitate interaction by prompting the students to initiate and respond to each other, and reinforce them for doing so using praise and tangible reinforcement.

6. REDACTED receives occupational therapy twice a week for 45-minute sessions and speech-language therapy three times a week for 45-minute sessions. These services are provided by New York State licensed therapists in their respective fields.

7. In addition to the full school-day program that REDACTED receives at REDACTED , it is my professional opinion that REDACTED also requires home-based ABA services.

8. I recommend 10 hours per week of home-based ABA services.

9. REDACTED requires repeated practice of new skills to acquire them to mastery, particularly with complex academic skills as well as social skills. REDACTED is at an academic level in which he should be completing homework, for which he will require similar instruction as in school to attend to and accurately complete the work.

10. Overall, based on my supervision of REDACTED program at REDACTED my review of his records and my close communications with his therapists, REDACTED made progress throughout the 2022-2023 school year. I believe REDACTED is able to provide REDACTED with the appropriate supports to meet his unique needs. (S)

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. (H,I,J&K).

The student has progressed academically and socially from the instruction provided at the student’s unilateral placement school. (Id)

1) am familiar with REDACTED. because I currently provide REDACTED with one-on-one (“1:1”) academic remediation through ABA at a rate of approximately 10 hours per week throughout the school year.

2) REDACTED was referred to [REDACTED] in February 2020 due to concerns of academic delays and availability to access to curriculum in a meaningful way. He received ABA services at a rate of 10 hours per week from March 2020 - November 2020 by the provider named REDACTED. There was a break in services and then I resumed in providing

REDACTED. ABA services in October 2021.

3) I collaborate with REDACTED’s related service provider and his family, and I conduct informal assessments as needed.

4) Based on REDACTED rate of progress and significant deficits, I believe that REDACTED continues to require 10 hours of at-home ABA services in order to make meaningful educational progress. REDACTED home-based ABA therapy is necessary to REDACTED educational progress in the school setting, if REDACTED ABA is not utilized in the home setting in addition to the school setting, it is likely that the skills REDACTED acquires in school will not be maintained and reinforced. The at-home ABA provider can work with REDACTED and the family to help implement these skills correctly and to ensure that the wrong response is not inadvertently reinforced, which would then likely have a negative impact on his educational progress. (R)

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)

In this case, the, the DPC requests “transportation” services, the record does not, specify or articulate any of the specific reasons cited above that are required as part of the inquiry as to whether the student needs “special education transportation.”

However, this does not preclude a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it must consider transportation of the student to the private school in accordance with Educ. Law 3635; 4402[4][[d].

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, within 30 days of this order shall fund and/or 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 DOE shall pay directly the cost of the students receipt of ABA at home services of 10 hours per week for the 2022-2023 school year at a rate not to exceed $300.00 per hour.

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: February 11, 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)