New York City Department of Education, Impartial Hearing Decision

Case Number: 584305 – NYC: 235943

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

FINDINGS OF FACT AND DECISION

Case Number: 235943

NYS Identifier Number: 584305

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 11/21/22, 03/15/23, 04/25/23

06/05/23, 09/07/23 & 10/02/23

Actual Record Close Date: December 01, 2023

Hearing Officer: Sharifa Milena Nasser

Date of Decision: December 30, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 11/21/22 (V)

[REDACTED] DOE Representative DISTRICT 11/21/22 (V)

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

[REDACTED] DOE Representative DISTRICT 03/15/23 (V)

[REDACTED] DOE Representative DISTRICT 04/25/23 (V)

[REDACTED] Attorney PARENT 06/05/23 (V)

[REDACTED] DOE Representative DISTRICT 06/05/23 (V)

[REDACTED] Attorney PARENT 09/07/23 (V)

[REDACTED] Parent PARENT 09/07/23 (V)

[REDACTED] Witness PARENT 09/07/23 (V)

[REDACTED] DOE Representative DISTRICT 09/07/23 (V)

[REDACTED] Attorney PARENT 10/02/23 (V)

[REDACTED] Legal Associate PARENT 10/02/23 (V)

[REDACTED] Parent PARENT 10/02/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 09/08/22 PARENT 06 pages

B. IESP 02/10/22 PARENT 17 pages

C. Ten-Day Notice 09/05/22 PARENT 02 pages

D. Amended Due Process 12/07/22 PARENT Complaint 04 pages

E. Neuropsychological 09/14/22 PARENT 10 Evaluation

F. Affidavit of REDACTED 06/29/23 PARENT 05 pages

G. Affidavit of the Parent 07/03/23 PARENT 02 pages

On. October 25, 2022, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 pages

of. the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on October 02, 2023. A list of the documents entered into evidence is annexed hereto. BACKGROUND This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s counsel, on or about September 08, 2022, and carried under New York City (“NYC”) Case No. 235943. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the school year in that the parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning and that the student’s IEP was procedurally and substantively flawed and denied the student a FAPE for the 2022-2023 school year. The CSE convened on February 10, 2022 to conduct an IEP meeting and subsequently recommended the following: SETSS, Direct Service, Group Service, English, 5 periods per week; Speech-Language Therapy, Individual Service, English, 3x30 minutes per week; Occupational Therapy, Individual Service, English, 2x30 minutes per week; and Physical Therapy, Individual Service, English, 2x30 minutes per week. On or about September 2022 the student was evaluated by an independent Neuropsychologist. The Parent provided the DOE with a copy of the evaluation on or about November 8, 2022. The CSE convened on November 15, 2022. Although the parents’ evaluation recommended 10 periods of SETSS, the DOE only provided 6 periods 2022-2023

on. the students IEP.. At the impartial hearing, the Parent seeks the following relief: (a) An award of 200 hours of compensatory education services of SETTS services at fair market rate. (b) A continuation of Speech and Occupational Therapy as per the student’s most recent IEP. The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final “impartial hearing” before this IHO on May 23, 2023 and June 13, 2023, and this decision being made not on the basis of the submission of testamentary and documentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f],and The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence and failed to appear at the hearing. 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) witness testify on their behalf, who testified at the hearing. On the hearing date, the DOE failed to appear. The Parent also submitted (10) 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. Additionally, the District did not present any witnesses to defend their case. The District was given an opportunity to have their witness appear and testify and the witness failed to appear. (T-45-46) 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 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 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 2020-2021 and and that the Parent may be entitled to the proven relief she has requested. 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 them 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 2021-2022 school year 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:

After not presenting a case-in-chief and the DOE failing to proffer any witnesses. The Parent’s witness, REDACTED testified on direct via affidavit as follows about the student’s disabilities and diagnosis.

The Doctor met with the student on various dates on or about September 2022 and diagnosed the student with “speech or language impairment.” (Parents -F-3) The valuation also recommended that due to the student’s impairment, he recommends 10 periods of SETTS per week and the continuation of speech and occupational therapy. (Parents -F-4)

The District failed to appear and cross examine any witness.

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).

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 Parent’s testamentary evidence is completely uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; 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 there is no evidence that the Parent has not cooperated with the DOE; 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 for the 2022-2023 school year and the evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief; and Now, therefore, it is hereby

ORDERED that upon its receipt of reasonably satisfactory of services having been rendered, the NYC-DOE shall either reimburse the Parent and/or directly pay the cost for the student’s compensatory services in the amount of a bank 200 hours of SETTS services at market rate, said hours to expire within 24 months of this decision:

ORDEREED that the DOE will continue to fund the students speech and occupational therapy as per the students most recent IEP. ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2023-2024 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: December 30, 2023

Queens, New York Sharifa Milena Nasser- IHO

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 Law 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)