New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 09/16/22 (V)

[REDACTED] DOE Representative DOE 09/16/22 (V)

[REDACTED] Attorney PARENT 10/14/22 (V)

[REDACTED] DOE Representative DOE 10/14/22 (V)

[REDACTED] Attorney PARENT 11/17/22 (V)

[REDACTED] DOE Representative DOE 11/17/22 (V)

[REDACTED] Attorney PARENT 01/13/23 (V)

[REDACTED] DOE Representative DOE 01/13/23 (V)

[REDACTED] Attorney PARENT 03/03/23 (V)

[REDACTED] Witness PARENT 03/03/23 (V)

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

[REDACTED] Witness DOE 03/03/23 (V)

[REDACTED] Attorney PARENT 03/15/23 (V)

[REDACTED] Parent PARENT 03/15/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 07/05/22 PARENT Request 08 pages

B. Notice of Unilateral 08/25/21 PARENT Placement 03 pages

D. C Findings of Fact and 04/09/20 PARENT 18 Decision '21/'22 Final Progress N/A PARENT Report 12 pages

E. '21/'22 Quarter One N/A PARENT 17 Progress Report

F. Therapy Interim Report 01/2022 PARENT 04 pages

H. '21/'22 Quarter Three N/A PARENT 17 Progress Report

I. Therapy Interim Report 06/2022 PARENT 04 pages

J. Proof of Payment 09/17/21 PARENT 01 pages

K. Payment Affidavit 11/03/22 PARENT 01 pages

L. Enrollment agreement 03/10/21 PARENT 04 pages

M. Daily Schedule '21/'22 N/A PARENT 01 pages

N. Attendance Report 06/16/22 PARENT 01 pages

O. Loan Agreement 08/27/21 PARENT 03 pages

P. Proof of Payment N/A PARENT 02 pages

Q. Parent's Affidavit 03/14/23 PARENT 04 pages

1. Due Process Complaint 07/05/22 DOE 08 pages DOE

2. IEP 01/14/21 DOE 49 pages DOE

3. Prior Written Notice 02/04/21 DOE 04 pages DOE

4. PWN and School Location 06/22/21 DOE Letter 07 pages DOE

6. 5 Neuropsychological 03/30/19 DOE 23 Reevaluation Educational Evaluation 02/10/19 DOE Report 04 pages DOE

7. Quarter One Progress N/A DOE Report '20/'21 18 pages DOE

8. Class Schedule '20/'21 N/A DOE 01 pages DOE

9. Ten-Day Notice 08/25/21 DOE 03 pages DOE

I. E-Mail from DOE Rep 03/15/23 IHO 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 05, 2022. Impartial hearings were held on September 9, 2022, October 14, 2022, November 17, 2022, January 13, 2023, March 3, 2023 and March 15, 2023. A list of the documents taken into evidence is annexed to this decision. BACKGROUND

On. or about January 2021, a CSE meeting was held for the student after Pre School. The CSE recommended the student attend a Special Class 12:1:1. The Parents maintain that the DOE failed to address the student's physical disabilities that require an accessible building location in his IEP and that require and necessitate the provision of adaptive physical education to the student. The Department of Education failed to even indicate this on his IEP. [REDACTED] is a student who is wheelchair-bound and requires

a. fully accessible building in order to receive educational benefit in light of his individualized needs. (TR. 29). 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 2021-2022 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. The District failed to submit and proof into evidence that they replied to the Parents 10 Day Notice. (B)

At. the impartial hearing, the Parent seeks the following relief: • Tuition funding for the student’s attendance at the private school for the 2021-2022 school year. THE DOE’S CASE The DOE called one witness to testify on its behalf and submitted (9) 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]. 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, 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 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 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. After the DOE’s witness testified on direct and the DOE chose to strike their witnesses testimony and conceded that the District did not in fact offer the student a FAPE for the 2021-2022 school year. (TR. 52) The District also failed to appear on the adjourn date to finalize the hearing on March 15, 2023 and sent the undersigned an e-mail stating that they were waiving their appearance and were not going to appear on the adjourn date. (TR. 60) 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 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 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 401 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 2021-2022 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 documentary evidence submitted by the Parent. (D,E,H)

The Parent testified on direct via affidavit to the following. 1. [REDACTED] has received related services throughout his life. He received physical, occupational and speech therapy through Early Intervention, and later through CPSE and CSE. He has always had a mobility/health paraprofessional, who assists with activities of daily living, including toileting and eating, as well as safely maneuvering from his wheelchair. Due to his heightened anxiety, he benefits from a high level of structure and scaffolding. Given his physical limitations, [REDACTED] is provided a computer to utilize for all writing assignments. As a 12th grader at the [REDACTED] during the 2021-2022 school year, he continued to receive speech-language therapy, physical therapy, and occupational therapy, and participated in social skills groups in and out of school. 2. [REDACTED] attended the [REDACTED] for the 2021-2022 school year, because the program had been very well suited to his needs and he had made great progress there during prior academic years. As parents we are very familiar with the program, the teachers, the therapists and the administrators, as there is constant communication among us. 3. [REDACTED] benefits from small group instruction, including repetition; guided questions and other scaffolding; and the use of visuals, all of which were available and provided to him at [REDACTED] during the 2021-2022 school year. 4. During the 2021-2022 school year [REDACTED] made enormous progress academically and socially. [REDACTED] had an Advisory class each morning and afternoon to begin and end the day. He took classes in U.S. History, English, Algebra, Health, Music, American Sign Language, Physical Education, Study Hall/1:1 Instruction, and received Physical Therapy, Occupational Therapy, and Speech Therapy. 5. We received Progress Reports from the school throughout the school year that detailed [REDACTED] program and his progress in each academic area. These reports, which have been entered into the record, describe the program that [REDACTED] made throughout the 2021-2022 school year. Tuition for [REDACTED] at the [REDACTED] for the 2021-2022 school year was $148,352.00, which [REDACTED] and [REDACTED] paid in full. Some of the funds were borrowed from family members and we have a legal obligation to repay these sums regardless of whether we receive reimbursement for these amounts from the Department of Education for the 2022-2023 school year pursuant to the pendency principles of the

IDEA. (M)

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 2021-2022 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 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 services 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 and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 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: May 16, 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)