New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 237057

NYS Identifier Number: 585555

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 11/21/22, 12/02/22, 01/19/23

& 05/18/23

Actual Record Close Date: July 01, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 12/02/22 (V)

[REDACTED] DOE Representative DOE 12/02/22 (V)

[REDACTED] Attorney PARENT 01/19/23 (V)

[REDACTED] DOE Representative DOE 01/19/23 (V)

[REDACTED] Attorney PARENT 05/18/23 (V)

[REDACTED] Mother PARENT 05/18/23 (V)

[REDACTED] Witness PARENT 05/18/23 (V)

[REDACTED] DOE Representative DOE 05/18/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 09/08/22 PARENT 05 pages

B. Ten-Day Notice 08/18/22 PARENT C Neuropsychologist's 02/28/23 PARENT 03 Letter D Pediatric Neurologist 06/20/22 PARENT 02 Progress Note E [REDACTED] Academy N/A PARENT 07 Program Description 2022/2023 School Year 03 pages

F. [REDACTED] Academy 22’/23’ PARENT 01 Learning Plan G [REDACTED] Academy 01/2023 PARENT 15 Progress Report

H. Affidavit of 02/28/23 PARENT [REDACTED] I [REDACTED]Academy 22’/23’ PARENT 08 Enrollment Contract

J. Parent's Tax Return 2021 PARENT 01

K. Parent's Credit Card 05/05/22 PARENT 01 Statement 05 pages

L. [REDACTED] Academy 01/20/23 PARENT 01 Tuition affidavit M [REDACTED] Academy 01/31/23 PARENT 05 Attendance Record

N. Affidavit of [REDACTED]02/28/23 PARENT 03 pages

1. IEP 05/17/22 DOE 21 pages DOE

2. Prior Written Notice of 01/18/22 DOE Recommendation 05 pages DOE

6. 3 Social History 01/12/22 DOE 01 4 Classroom Observation 04/04/22 DOE 01 5 Child Outcome Summary 05/23/22 DOE 01 Prior Written Notice, 09/28/22 DOE 09 pages DOE

7. Notice of Recommendation Prior Written Notice, 05/23/22 DOE 09 pages DOE

On. Notice of Recommendation October 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 six (6) 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 September 09, 2022. The Impartial was held on May 18, 2023. 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”) 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 2032-2022 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 Parents served the DOE on August 18, 2022 with their 10 day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (D)

At. the impartial hearing, the Parent seeks the following relief: • Tuition reimbursement for the student’s attendance at the private school for the 2022-2023 school year. THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and submitted documents in evidence. The DOE also waived an opening statement 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) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The DOE did cross examine the witnesses. The Parent also submitted twenty (15) 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 six 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. 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 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, 401 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 6 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 2022-2023 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 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 Parents witness, [REDACTED], the Director at the private school testified about the school and student as follows via affidavit on direct testimony.

1. The [REDACTED] Curriculum is based on the individual abilities and needs of the learners. We promote development in our student’s critical thinking, literacy and acquisition of skills in the cognitive, linguistic, social/emotional, behavioral and physical domains. Our educational approach emphasizes the active engagement of students, opportunity for individual and group exploration, a balance between adult-initiated and student-directed curriculum, and collaborative learning with the emphasis on the process rather than the product. Our goals are to develop skills as well as prepare students to develop positive self-esteem, confidence, and the ability to work independently and with others. Our nurturing learning environment provides a safe place for students to interact with peers, problem solve and make connections between the developmentally appropriate curriculum and their world. Multi-dimensional project work and enrichment activities build on the student’s prior learning experiences and thereby facilitate the acquisition of higher-level skills.

2. To support our students’ behavioral needs, we employ ABA/Verbal Behavior, TEACCH, and Floortime models depending on the student’s individual needs. We also have a Board Certified Behavioral Analyst (“BCBA”) on staff to monitor, evaluate, intervene, train, and support our students and staff.

3. As a part of our mission to educate the whole child, we also offer related services and enrichment programs. These related services include: speech therapy, feeding therapy, occupational therapy, physical therapy, counseling, vision services, hearing services, physical fitness classes, paraprofessional services, AAC devices and services, art therapy, music therapy, cooking, social skills, and community exploration.

4. For the 2022-2023 school year, there are 137 students enrolled in [REDACTED] as a whole— both the upper and lower school. The students range from ages 3 to 16. The students who attend [REDACTED] require significant support with their Activities of Daily Living (“ADL”) skills, expressive and receptive language, cognitive delays, and motor delays.

5. In determining the make-up of the class, we look to place students with similar learning needs and take into consideration the level of supports required to make that student successful.

6. [REDACTED], who is a New York State Certified Special Education Teacher and has her Master’s Degree in Inclusive Education, supervises all of the teachers at [REDACTED].

7. Our teachers all have their master’s degree and are certified in Special Education within the State of New York. We also have assistant teachers in the classrooms. The assistant teachers are all certified teaching assistants, either Level 3 or in the process of achieving Level 3 status.

Our paraprofessionals all have at least a high school degree, while some have college level courses. The paraprofessionals receive additional training beyond the standard professional development sessions to support the paraprofessionals’ understanding of the student population at [REDACTED].

8. The teachers and staff receive professional development every Thursday. For example, some of the more recent professional development courses have been focused on managing behaviors and sensory processing. For example, our BCBA runs school-wide professional developments to go through and understand how to use ABA, verbal behavior, understanding behaviors, and creating as well as maintain reinforcement schedules.

9. All of our classrooms have SmartBoards and each classroom has iPads for students. The iPads within the classrooms have educational applications downloaded onto them for student and staff use. Students also have individual iPads and other assistive technology devices and services to augment their communication.

10. At [REDACTED], teachers submit quarterly progress reports to the Parents and remain in regular communication with them about their student. They utilize a daily communication sheets and also communicate via email. Our social work department is also responsible for the home school connection.

11. I am familiar with [REDACTED], as he has been attending [REDACTED] since September 2021. I see [REDACTED] daily when I do my classroom rounds and observations.

12. [REDACTED] was admitted to [REDACTED] for September 2021. As per the admission process, [REDACTED] parents submitted an application. The admissions team also reviewed his prior school reports, psychological evaluation, doctors’ evaluations, and other videos of [REDACTED] interacting in various settings. As a result of our review, we determined that we could support [REDACTED] complex needs at [REDACTED] and provide him with an individualized learning program. Thus, we offered him an acceptance to [REDACTED].

13. At [REDACTED], we provide [REDACTED] with a small, safe environment for him to navigate—an important part of [REDACTED] program given his multiple disabilities. We also have sound-proof classrooms to support his attention needs and to tone down the extraneous sounds. Finally, [REDACTED] classroom has a very high teacher to student ratio, so we can provide [REDACTED] with individualized and specialized support in a calm, regulated, and safe environment.

14. For the 2022-2023 school year, we determined that [REDACTED] needs would be met in an 8:1:2 ratio special class with the following related services: Speech Therapy (3x30:1), Occupational Therapy (3x30:1), and Physical Therapy (3x30:1). We determined that this would be an appropriate program for him through the review of his progress reports, prior

Individualized Education Programs, and various evaluations and medical reports.

15. [REDACTED] school building has been architecturally designed for students with special needs, (LED lighting, sensory tiles on the wall, soundproof classrooms). [REDACTED] classroom also has accommodations for his behavioral and sensory needs, including, art therapy, physical education and music therapy as well as technology supports (Smartboards and iPads).

16. For the 2022-2023 school year, we placed [REDACTED] in Star A, because Star A had students who were cognitively, academically, socially, and behaviorally at the same level as [REDACTED]. As a result, I believe that the peer grouping is appropriate for [REDACTED] in this class. In addition, Star A provides [REDACTED] with a small class setting so that he can receive individual instruction that is based on [REDACTED] strengths and weaknesses.

Star A is taught by a New York State licensed and certified special education teacher.

17. At [REDACTED], we support [REDACTED] needs through the spacious hallways and classrooms; visual markers to help with navigation; sound proofing classrooms to support his sensory needs; small classroom ratios so he receives an appropriate amount of individualized support throughout the day; sensory gym times and specialized equipment to support his specific motor skills; and a language rich environment using trained speech pathologists.

18. [REDACTED] team at [REDACTED] communicates with his parents daily and they are actively involved in his learning.

19. Based on my knowledge of [REDACTED] and [REDACTED], I believe [REDACTED] is making appropriate progress during the 2022-2023 school year across his subjects and related services. I believe [REDACTED] is appropriately placed at [REDACTED] because we offer an individualized program for his needs with appropriate peer models. [REDACTED] small class sizes and low student-to-teacher ratios ensure that he is provided with a significant amount of individual attention and very small group instruction. The program at [REDACTED] includes the individualized instruction he requires—including, among other things: a low student-to-teacher ratio; small class sizes; 1:1 instruction; multisensory instruction; and weekly speech, physical, and occupational therapy sessions tailored to meet his needs. The program provides him with significant support in her academics, language, social, emotional, and other related services, to enable him to make progress in all areas of him development. (Parent’s- H)

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.

The Parent’s evidence show the Progress the student has made throughout the year. (G)

There is nothing in the record that supports 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 shall reimburse the Parent for their $2,000.00 deposit at the school and directly pay for the remainder costs of the student’s tuition and related costs at the private school for the time the student attended the private school during the 2022-2023 school year; and it is further

ORDERED that the DOE provide roundtrip transportation between the Student’s home and the private school in the form of curb-to-curb busing with a limited Time Travel accommodation.

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 2023-2024 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 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: July 31, 2023

Queens, New York Sharif 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)