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] Parent PARENT 11/18/22 (V)

[REDACTED] Parent PARENT 12/13/22 (V)

[REDACTED] Parent PARENT 03/13/23 (V)

[REDACTED] Attorney PARENT 05/15/23 (V)

[REDACTED] Parent PARENT 05/15/23 (V)

[REDACTED] Witness PARENT 05/15/23 (V)

[REDACTED] DOE Representative DOE 05/15/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Request for Due 09/14/22 PARENT Process Proceeding NOA 07 pages

B. IEP 12/08/20 PARENT 21 pages

C. Contract, Program 06/20/22 PARENT Description, Curriculum 20 pages

D. Affirmations Regarding 05/23/23 PARENT 02 Tuition

E. Curriculum Schedule '22/'23 PARENT 01 pages

F. Student Attendance '22/'23 PARENT 01 pages

I. G Assessments, Plans, N/A PARENT 31 Reports H TDN from Parent to DOE 08/15/22 PARENT ^[02] IEP 11/29/22 PARENT 26 pages

J [REDACTED] 05/12/23 PARENT

09

Affidavit

K [REDACTED] 05/12/23 PARENT

On October 19, 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 [REDACTED]. The Parents filed a Due Process Complaint (“DPC”) on or about September 14, 2022. The Impartial was held on May 15, 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 2022-2023 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 15, 2022 with their 10 day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (I) At the impartial hearing, the Parent seeks the following relief:

• Tuition reimbursement and or funding 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 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 Parent also submitted eleven (11) 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 no 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 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 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 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 The DOE also conceded on the record that they were waiving a Prong 1 case. (T-13) 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 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

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 The Parents witness, [REDACTED] Program Supervisor at the private school testified on direct via affidavit: 1. [REDACTED] is attending the [REDACTED] for the extended 12-month 2022-2023 school year. During this time I observe [REDACTED], speak to his teachers, work with them to create his individual curriculum, review his formal and informal tests, participate in his coordination meetings with our providers within the school, oversee his individual behavioral plan and academic progress, and ensure that he is utilizing our program and benefiting from our program throughout the school year by identifying and working with his team as they identify his weaknesses and work to create replacement techniques, preventative methods, and a plan for his success throughout the extended 2022-2023 school year. 2. To address his specific needs and challenges when he began the school year, the [REDACTED] began by conducting a Functional Behavior Assessment of [REDACTED] to assess his problem behaviors and their functions. With the collaboration of his teachers and providers, the [REDACTED] generated and supervised the implementation of an individualized behavior plan for [REDACTED] and monitors his progress through careful data collection using the Rethink platform. 3. [REDACTED] entered the [REDACTED] Program in the 2022-2023 school year with delays in multiple areas including behaviorally, socially, cognitively, and academically. 4. [REDACTED] struggled in the classroom setting. It was very difficult for him to maintain attention for long periods of time and he was easily distracted. [REDACTED] poor attention span and difficulty ignoring stimuli in his environment led him to engage in off-task and maladaptive behaviors. [REDACTED] struggled to comply with teacher demands. He would elope the classroom without permission. [REDACTED] struggled to participate during direct instruction and independent work. He displayed latency behaviors and he did not complete tasks. [REDACTED] struggled to follow classroom routine and maintain appropriate behaviors. [REDACTED] struggled to control his behaviors in social settings. He would shut down when he encountered social challenges. His poor social skills and lack of communication caused him to withdraw in social settings. [REDACTED] would avoid social interactions and would often resort to withdrawal behaviors for significant amounts of time. He displayed socially inappropriate behaviors when attempting to interact with peers. He struggled to express himself adequately and was easily frustrated when he encountered challenges. He had a poor self-image and did not believe in his ability to succeed. [REDACTED] communication deficits impeded on his functioning across all settings. His articulation was poor and he spoke with poor sentence structure. He had poor word retrieval skills and deficient word choice. He could only speak in short sentences and was unable to express complete thoughts. He was extremely indecisive and struggled to plan, commence and complete a task. It was difficult for him to organize his belongings and he presented with extremely poor executive functioning skills struggling to plan and set goals. He had poor study skills. He also had processing delays. He was slow to grasp information and had poor memory and retrieval skills. It was difficult for him to learn new concepts and he struggled to apply information to his work. [REDACTED] had poor number sense and struggled with computing numbers. He struggled with word problems and multi-step examples. He also had poor decoding skills and read slowly with poor comprehension skills. He struggled to understand the main idea of a text. He had difficulty with critical thinking skills and higher order thinking skills. He also was unable to answer inferential questions. His handwriting was poor and he had poor spelling due to poor phonemic awareness skills. 5. For the 2022-2023 school year, [REDACTED] unique needs required a highly-structured program in a classroom with a low student-to-teacher ratio to minimize distractions and to maximize individualized attention. He required a behavior intervention plan and social skills instruction to help him maintain appropriate classroom behaviors and to enable him to focus on classroom instruction and tasks. [REDACTED] required a program with modifications and accommodations in the classroom, and differentiated instruction to help him learn. He needed an extensive amount of individualized attention, frequent prompts, repetition, modeling, redirection, and encouragement to follow through with assignments. 6. An individualized behavioral plan has been developed and implemented for [REDACTED], and is closely tracked and modified as needed to ensure that [REDACTED] is making meaningful progress. Among the many techniques and accommodations utilized for [REDACTED] include DTT, NET, Premack Principle, positive reinforcement (e.g., praises, attention, access to favorable activity/toy, and scheduled breaks), teaching replacement behaviors, social skills training, as well as prompt hierarchy, shaping, prompt fading, and task analysis. Extinction and planned ignoring are utilized to decrease maladaptive behaviors. [REDACTED] is learning from peer role modeling and practice behavior management. 7. By virtue of being part of a class with a low student-to-teacher ratio, and where cutting-edge technology is deployed, the [REDACTED] provides [REDACTED] with a personalized program that is designed to support him in his areas of challenge and delay, and enable him to make meaningful academic and functional progress. During the extended 2022-2023 school year, [REDACTED] is responding positively to the behavior intervention plan and modified curriculum. He is gaining skills to help him function in classroom and social settings. He is displaying more socially appropriate behaviors and interacting with his peers. He is also making progress in his math and reading and writing skills. (Parents- T) 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 2022-2023 school year.

The Parent’s evidence shows the Progress the student has made throughout the year. (H)

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 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 2022-2023 school year, minus the religious portion of the tuition in the amount of $5,000; 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 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 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 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)

Footnotes

[02] Affidavit examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay 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 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} special service necessary to maximize the student's potential. (See Frank G., 459 F.3d that the student was denied a FAPE for the 2022-2023 school year.