New York City Department of Education, Impartial Hearing Decision

Case Number: 575137 – NYC: 227922

FINDINGS OF FACTS & DECISION

Case Number: 227922

NYS Identifier Number: 575137

Student’s Name: REDACTED

Date of Birth: REDACTED

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 09/16/22, 10/14/22, 11/17/22

12/16/22 & 02/03/23

Actual Record Close Date: March 30, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

REDACTED Attorney PARENT 09/16/22 (V)

REDACTED Attorney PARENT 10/14/22 (V)

REDACTED Attorney PARENT 11/17/22(V)

REDACTED Attorney PARENT 12/16/22 (V)

REDACTED Attorney PARENT 02/03/23 (V)

REDACTED Mother PARENT 02/03/23 (V)

DOCUMENTATION ENTERED INTO RECORD

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

B. Notice of Unilateral 06/17/21 PARENT Placement 03 pages

C. Neuropsychological 04/05/19 PARENT 12 Re-Evaluation

D. Speech and Language N/A PARENT Goals for 2021/2022 E Occupational Therapy N/A PARENT 02 Goals for 2021/2022 02 pages

F. 2021/2022 Classroom N/A PARENT 04 Goals G REDACTED N/A PARENT 08 Program Offerings

H. Daily Schedule for N/A PARENT 2021/2022 01 pages

I. Speech and Language 06/2022 PARENT Therapy Progress Report 06 pages

J. Speech and Language 12/20/21 PARENT Therapy Progress 2 Report 05 pages

K. Occupational Therapy 06/2022 PARENT 07 Progress Report L Occupational Therapy 12/2021 PARENT 05 Progress Report

M. Educational Progress 06/2022 PARENT Report 07 pages

N. Educational Progress 12/2021 PARENT Report 06 pages

O. Occupational Therapy 06/2021 PARENT 08 Progress Report

P. Speech and Language 06/2021 PARENT 05 pages

Q. Therapy Progress Report Educational Progress 06/2021 PARENT Report 06 pages

R. Prior Written Notice 09/24/21 PARENT 13 pages

S. School Location Letter 09/22/21 PARENT 02 pages

T. Attendance Record 06/29/22 PARENT 01 pages

U. Enrollment Agreement 06/02/21 PARENT 05 pages

V. Affidavit of REDACTED 02/01/23 PARENT 09 pages

W. Affidavit of REDACTED 02/02/23 PARENT 03 pages

BACKGROUND

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 03. The Parents filed a Due Process Complaint (“DPC”) on or about July 5, 2022. The Impartial hearings were held on September 16, 2022, October 14, 2022, November 17, 2022, December 16, 2022 and February 3, 2023. A list of the documents taken into evidence is annexed to this decision.

In. this case, the Parents allege that the Committee on Special Education (“CSE”) convened after the start of the 2021-2022 school year to develop the student’s IEP for the 2021-2022 school year. The CSE recommended a 6:1:1 class. The parents allege that they have not received any IEP for the 2021-2022 school year or any type of school placement. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning. The District failed to submit into evidence any proof that they responded to the Parent’s 10 day notice on June 17, 2021. (B) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2021-2022 school year. (Id.) The Parent initiated an independent Neuropsychological Evaluation that was performed when she was [REDACTED] years old and reevaluated on March 2019 when the child was 9 years old and was diagnosed as follows: “Diagnostically, [REDACTED] rigidities and deficits in social interaction continue to be consistent with a diagnosis of autism spectrum disorder, as outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Additionally, attentional difficulties and impulsivity meet criteria for a diagnosis of attention-deficit/hyperactivity disorder (ADHD), combined presentation. DSM-5 Diagnoses: 299.00 Autism spectrum disorder 314.01 Attention-deficit/hyperactivity disorder, combined presentation.” (C-8)

At. the impartial hearing, the Parent seeks the following relief: Tuition reimbursement for the student’s attendance at the private school for the 2021-2022 school year.

THE DOE’S CASE

The DOE failed to appear at the Impartial Hearing on February 3, 2023. Previously the DOE also failed to appear on hearing dates of September 16, 2022, October 14, 2022, November 17, 2022 and December 16, 2022, wherein the date for the hearing on the merits was given to the parties. The DOE did not call any witnesses to testify on its behalf and submitted no 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]. The DOE was not present at the hearing to cross examine any of the witnesses. The Parent also submitted twenty three (23) 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 never responded to the Parents 10 day notice sent on June 17, 2021. (B)

DOE’S DEFAULT

The DOE failed to appear and call any witnesses to testify on its behalf and did not submit any documents in evidence. 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. 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 testamentary and documentary evidence was not rebutted by either party and both are clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by 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, 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 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 2021-2022 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 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 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 2021-2022 school year.

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction to address the students’ learning disabilities. After not presenting any case-in-chief and the DOE failing to appear the Parents witness, testified via affidavit on direct examination. The Director of Education at the student’s unilateral placement school has noted their progress within their school. (V) REDACTED testified on direct examination via affidavit. 1. I am familiar with REDACTED, a student that has attended REDACTED September 2014. I have supervised REDACTED Lead Teacher and classroom since July 2019. 2. REDACTED underwent the typical admissions process described previously. 3. During the 2021-2022 12-month school year, REDACTED classroom was comprised of 8 students aged 10 to 12. There are 4 adults in the room, including 1 Lead Teacher, 1 Head ABA Instructor, and 2 ABA instructors. 4. REDACTED attended REDACTED in person 5 days a week. In person services were consistently provided during the 2021-2022 school year unless the student or classroom was required by New York State Department Of Health (NYS DOH) to quarantine due to exposure to an individual with COVID or if the student was diagnosed with COVID. If the student was required to quarantine by the NYS DOH for a specified number of days, remote instruction was provided to the student during the quarantine period until they were cleared to return to in person instruction. Remote Learning/Instruction was provided through synchronous video sessions (which means live video sessions where the teacher/therapist is in a different location than the student) with the parent acting as a proxy (in which they function as our ‘hands’) during the session. Synchronous sessions are utilized for classroom instruction, speech therapy and occupational therapy. REDACTED also provides asynchronous learning/instruction through several different modalities. This may include asynchronous video of specific exercises or activities that have been pre-recorded by the teacher, written assignments/worksheets individually tailored to the REDACTED learning goals, or activities to execute with the parent or caregiver. These asynchronous assignments may be provided via the Google Classrooms platform or emailed directly to the parent or caregiver. 5. In my current role, I oversee REDACTED progress in collaboration with her Lead Teacher and related service providers including program development and her progress towards goals. I have access to all of the data that REDACTED ABA instructors collect. I have observed REDACTED and also spoken to her Lead Teacher and related service therapists in preparation for this hearing, and my testimony incorporates information provided by those individuals. 6. As with all students at REDACTED, REDACTED goals and objectives are formulated with parent participation and take into account the student’s history of instruction, and results from a criterionbased assessment, the Assessment of Functional Living Skills® (AFLS). Programming includes measurable outcomes and is continuously measured throughout the instructional day. 7. REDACTED receives 5 hours of 2:1 and 1:1 individualized instruction each day, with 1 hour of instruction during lunch and leisure skills with a 4:1 instructional ratio. 8. REDACTED teacher for the 2021-2022 school year is REDACTED. REDACTED has a Master’s Degree in Early Childhood Education and Special Education. She has New York State teaching certification in Students with Disabilities (Birth to 2nd grade). 9. The Head ABA Instructor has a bachelor’s degree in psychology and is enrolled in a master’s degree program in ABA and receiving supervision as part of the requirements to become a BCBA. One ABA instructor in REDACTED classroom has a master’s degree in early childhood general and special education. The remaining ABA instructor had a bachelor of science in early childhood education and special education. ABA instructors are provided with initial training on the principles of behavior analysis, behavior management, and data collection and analysis. Additionally, REDACTED faculty are provided with ongoing training bi-weekly and observations from the classroom supervisor, lead teacher and/or training team. 10. REDACTED also receives related services of Occupational Therapy and Speech Therapy. REDACTED receives two 30-minute sessions of speech therapy in a 1:1 setting, one 30-minute session of speech therapy in a 2:1 dyad setting, one group speech therapy session for 30 minutes (supported 2:1 by classroom staff), and one 30-minute lunch consultation by a speech therapist. REDACTED also receives two 30-minute sessions of occupational therapy in a 1:1 setting weekly, one occupational therapy group session for 30 minutes weekly (supported 2:1 by classroom staff), and one 30-minute lunch consultation by an occupational therapist. 11. REDACTED occupational therapist during the 2021-2022 school year was REDACTED. REDACTED holds a master’s degree in Occupational Therapy and is a licensed occupational therapist in New York. REDACTED speech therapist during the 2021-2022 school year was REDACTED. REDACTED holds a Master of Science in Communication Disorders and is a Teacher of Students with Speech and Language Disabilities (TSSLD). She was completing her Clinical Fellowship to fulfill requirements for her license in speech-language pathology and was supervised by REDACTED. REDACTED holds a Master of Science in Education in Speech-Language Pathology, is a TSSLD, holds a certificate of clinical competence and is a licensed speech and language therapist in New York. 12. Within classroom programming, REDACTED made progress during the 2021-2022 school year. REDACTED mastered responding as a writer to generate equivalent fractions when the reinforcement schedule was provided on a variable schedule. REDACTED also demonstrated progress towards multiplication fluency skills across x1, x2, x5, x10, and x11 facts. Within literacy skills, REDACTED demonstrated progress identifying the beginning, middle and end within a chapter of a text when provided with a visual response prompt and utilizing the graphic organizer to summarize the chapter by tying a paragraph. Within social skills instruction, REDACTED demonstrated progress towards conversations skills within interactions with her classroom peers and pre-trained, typically developing peer buddies. REDACTED improved at making appropriate comments and refraining from making irrelevant or socially inappropriate comments when the schedule of reinforcement was provided on a variable schedule. REDACTED also learned critical self-care skills, including applying deodorant and wiping her face. Across short-term objectives, as REDACTED demonstrated mastery criteria, adult proximity and the schedule of reinforcement were faded to teach REDACTED to apply deodorant. Guidelines and programming based on empirically validated tactics from the ABA literature were developed to ensure maintenance of appropriate classroom behaviors as well. REDACTED progress during the 2021-2022 school year is outlined in the classroom progress reports provided for the record. 13. REDACTED also demonstrated progress towards her speech and language therapy goals. REDACTED mastered following a 4-step sequence to complete a task, when provided with a visual prompt, to notify her teacher that she is leaving the classroom to go to speech therapy. To use the appropriate tone of voice relating to an emotion, REDACTED demonstrated progress but requires a visual prompt to produce words, phrases or sentences that require different tones. 14. Within occupational therapy sessions, REDACTED has demonstrated progress identifying and responding to environmental distractions. REDACTED demonstrated the ability to identify distractions such as loud noises or clutter on her desk with decreased prompts throughout the 2021-2022 school year. REDACTED additionally demonstrated progress with an oral hygiene routine, as evidenced by decreased prompting required to brush her teeth and use a floss picker to floss each tooth starting at the back of her mouth. Additionally, REDACTED was learning to apply and remove a feminine hygiene pad. Throughout the school year, REDACTED learned foundational skills and progressed to manipulating a pad and placing it on her underwear, when provided with visual and verbal cues. 15. REDACTED continues to require 2:1 and 1:1 individualized instruction in a setting that utilizes ABA in order to address her needs. She demonstrates delays in communication skills, social skills and selfmanagement skills as well as across literacy skills. She requires individualized instruction that systematically fades prompts and schedules of reinforcement within her programming based on the mastery of current short-term objectives. 16. It is my professional opinion that Crossbridge was an appropriate placement for REDACTED for the 2021-2022 school year. (V)

The Student’s Progress Reports were also submitted into evidence and they show the students’ progress through their semesters for the 2021-2022 school year. (I-Q) The student has progressed academically from the instruction provided at the student’s unilateral placement school. (Id)

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

ORDER

NOW therefore, it is hereby ORDERED that the DOE denied the student a FAPE for the 2021-2022 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 and related cost at the private school for the time the student attended the private school during the 2021-2022 school year; and it is further ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce an IEP for the student’s 2022-2023 school year; and it is further ORDERED that the DOE shall conduct evaluations of the student in all areas of their suspected disabilities, not identified above and not evaluated within the last two years, for their 2022-2023 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: April 19, 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)