New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 000000 - NYC: 000000

FINDINGS OF FACTS & DECISION

Case Number: 227957

NYS Identifier Number: 575172

Student’s Name: REDACTED

Date of Birth: REDACTED

District: 03

Hearing Requested By: Parent

Dates(s) of Hearing: 09/13/22, 10/17/22, 11/15/22, 12/16/22, 02/09/23 & 02/10/23

Actual Record Close Date: March 30, 2023

Hearing Officer: Sharifa Milena Nasser

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 10/17/22 (V)

[CONFIDENTIAL] DOE Representative DOE 10/17/22 (V)

[CONFIDENTIAL] Attorney PARENT 11/15/22 (V)

[CONFIDENTIAL] DOE Representative DOE 11/15/22 (V)

[CONFIDENTIAL] Attorney PARENT 12/16/22 (V)

[CONFIDENTIAL] DOE Representative DOE 12/16/22 (V)

[CONFIDENTIAL] Attorney PARENT 02/09/23 (V)

[CONFIDENTIAL] Attorney PARENT 02/10/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 07/06/22 PARENT Request, 07 pages

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

C. School Location Letter 01/03/22 PARENT 02 pages

D. Neuropsychological 05/01/19 PARENT 14 Evaluation

E. Individualized Education 10/09/20 PARENT Program 19 pages

F. Proof of Payment 03/07/21 PARENT 01 pages

G. 2021/2022 Student N/A PARENT 01 Schedule

H. Financial Affidavit 09/22/21 PARENT I 2020/2021 End-of-Year N/A PARENT 02 Speech and Language Report J 2020/2021 Midyear N/A PARENT 03 Speech and Language Remediation Report L 2020/2021 Academic N/A PARENT 25 Midyear Report M 2021/2022 Midyear N/A PARENT 02 Speech and Language Remediation Report N 2021/2022 Midyear N/A PARENT 23 Academic Report O 2021/2022 End-of-Year N/A PARENT 02 Speech and Language Remediation Report 01 pages

P. 2021/2022 End-of-Year N/A PARENT 25 Academic Report

Q. 2021/2022 Attendance 06/16/22 PARENT Report 01 pages

R. 2021/2022 Reference 03/03/21 PARENT 07 Enrollment Agreement

S. Affidavit of REDACTED 02/09/23 PARENT 04 pages

T. Affidavit 02/09/23 PARENT 04 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 an 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 05, 2022. Impartial Hearings were held on September 13, 2022, October 17, 2022, November 15, 2022, December 16, 2022, February 9, 2023 and February 10, 2023. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

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 an Integrated CoTeaching class and Special Education Teacher Support Services. The parents allege that they have not received any IEP for the 2021-2022 school year. 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 August 25, 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.)

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 9, 2023 and February 10, 2023. Previously the DOE appeared on hearing date of 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 nineteen (19) 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 August 25, 2021. (B)

DOES’ 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 401 pages

APPROPRIATENESS OF THE RELIEF SOUGHT

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. 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 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 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: Parents witness, testified via affidavit on direct examination. The Head Teacher, at the student’s unilateral placement school, has noted their progress within their school. (V) REDACTED testified on direct examination via affidavit. REDACTED School is committed to providing teachers and therapists with ample opportunities for professional development. All faculty participate in a two week Summer Institute just before school begins in the fall. In addition to the 30 Orton Gillingham training for new teachers and therapists, the Summer Institute covers more advanced topics in reading as well as instructional methods in mathematics, writing, curriculum design, executive functioning, and social emotional learning. Professional development is also provided throughout the year during biweekly faculty meetings and on administrative days. For example, in November 2021, REDACTED, an expert in diversity, equity, and inclusion (DEI) strategic practices in schools, conducted workshops for faculty and staff on best DEI practices. Moreover, head teachers, specialists and therapists are encouraged to take workshops in accordance with their interests at REDACTED expense. 9. The students’ needs vary, but they primarily have language-based learning disabilities. They range from expressive and receptive language problems, to dyslexia, dyscalculia, or ADHD. 10. Lower School classes all have a maximum of 12 students with one head teacher and one assistant or co-teacher. During the 2021-22 school year, REDACTED classroom had 12 students in total. 11. Additionally, students at REDACTED are placed into small groups for reading and math instruction. The students are grouped by ability rather than age, so students are on similar math levels in their math groups, similar levels for their reading groups, and similar ages and social skills levels for their homeroom classes. The homeroom class has an age range of approximately a year and a half. Students are also grouped in homeroom classes based on academic needs and learning styles. 12. I am familiar with REDACTED, the student that is the subject of this hearing. 13. REDACTED was a student in the Lower School during the 2021-22 school year. 14. REDACTED was placed in a homeroom classroom at REDACTED with 12 students, one head teacher and one assistant teacher. 15. I believe that this ratio is appropriate for REDACTED. REDACTED was placed in this class because the environment, teachers, therapists and peers were suited to him. 16. The composition of the class was very good for REDACTED. He had multiple academic and social peers. 17. For the first semester, REDACTED was in a reading group of 7 students with one teacher (myself). In the second semester, REDACTED transitioned to a reading group with 7 students and two teachers. His reading teachers were REDACTED and REDACTED. In the first semester, REDACTED as in a math group of 9 students with two teachers. In the second semester, he was in a math group of 6 students and 1 teacher. His math teachers were REDACTED and REDACTED. Once the group decreased in size, he was taught by REDACTED. 19. REDACTED presented with delays and deficits in receptive language, attention, and executive functioning. The nature of the program (e.g., small group learning, environment with limited distractions, explicit, systematic, multisensory instruction, and concise language) are the foundation of a supportive and intentional learning community. The OrtonGillingham approach to reading and the step-bystep approach of the REDACTED Writing Program fostered REDACTED progress in literacy. REDACTED required explicit and recursive teaching that was broken down into small components, as well as spiraling back to previously taught materials. REDACTED required, and was provided with, checklists, reminders to check over his work, redirection, and positive reinforcement. 20. REDACTED receptive language was also impacted by attention issues. REDACTED was also able to follow familiar, routine oral directions, provided they were directives he was capable of following (i.e., controlled for known concepts and skills). The nature of the program (e.g., small group learning, environment with limited distractions, multisensory instruction, explicit and concise language) are the foundation and are supportive and intentional. REDACTED also responded well to previewing, repetition, comprehension checks, truncated language, chunking and breaking down of language and instructions to improve understanding and follow through. 21. The nature of REDACTED program is supportive of REDACTED attention deficits, with a quiet and visually calm environment and multiple opportunities for small group instruction daily. REDACTED had multiple movement breaks, even within the multisensory approach to teaching, to activate his attention. 22. Directions were given using clear, explicit language. To ensure breakdown did not occur, REDACTED was given strategies to support follow through. Chunking multistep directions into manageable parts, often step by step, was beneficial for REDACTED. Repetition and re-auditorization and checklists supported his following all steps of a direction. 23. When REDACTED attention waned during novel, routine and/or challenging tasks, he continued to require significant support to maintain his focus, attend to visual details, monitor his work, complete tasks within the allotted time, and employ strategies. 24. We saw REDACTED make good, steady progress across all areas of the curriculum. The small class size, calm environment and supportive teaching allowed him to successfully access the curriculum. He worked at a slower pace and benefited from repetition, review and revisiting new concepts many times. The frequent small group instruction and individual support was necessary. 25. Our specialized school was able to provide him with the small class size and low student to teacher ratio that he needed for success. We were able to give him the 4 time and space he needs to process language and use it appropriately. He responded well to the multisensory approach, explicit, direct and repetitive instruction and individualized approach to learning. 26. I believe that REDACTED placement at REDACTED during the 2021-2022 school year was appropriate to address his identified areas of need and conferred an educational benefit upon him. (S)

The Student’s Academic end of Year Reports were also submitted into evidence and they show the students’ progress through their semesters for the and 2021-2022 school year. (I-P) 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. 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)