New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591499 - NYC: 242282

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney DOE 03/13/23 (V)

[CONFIDENTIAL] Attorney PARENT 03/13/23 (V)

[CONFIDENTIAL] Father PARENT 03/13/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

A. Due Process Complaint 11/15/2022 4 pages

B. Affidavit of [NAME] 3/3/2023 12 pages

C. Affidavit of [NAME] re: tuition 1/26/2023 1 page

D. Affidavit of [NAME] re: busing 1/26/2023 1 page

E. [REDACTED] statement - payments 2022-2023 2 pages

F. Attendance Records 2022-2023 1 page

G. Neuropsychological and Educational Assessment February 2022 43 pages

H. Present Levels of Performance and Individual Needs 6/27/2022 6 pages

I. Ineligible for Special Education Services 6/17/2022 2 pages

J. Email enclosing Prior Written Notice (“PWN”) 2/1/2023 1 page

K. PWN 6/27/2022 10 pages

L. Achieve Program Description - [NAME] 2022-2023 2 pages

M. Schedule 2022-2023 1 page

N. Bus Contract 7/10/2022 1 page

O. Trimester 1 Report Card 2022-2023 11 pages

P. Counseling Progress Report 2022-2023 2 pages

Q. Notice of Unilateral Placement 8/22/2022 3 pages

R. DOE Response to Notice of Unilateral Placement 9/8/2022 1 page

S. Tuition Contract 2022-2023 3 pages

T. Affidavit of [NAME] 3/6/2023 3 pages

N/A N/A N/A IHO N/A

On January 9, 2023, 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 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an ([REDACTED]) year old student attending a private school and the New York City Department of Education (“DOE”) - District: [REDACTED], regarding the student’s special education program. I was appointed after the rescission of the appointment of at least one other IHO. 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 March 13, 2023. A list of the persons who appeared at the hearing and 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 through her attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about November 15, 2022. The DPC is carried under New York City (“NYC”) Case No. 242282. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief: (a) Payment of 100% of the costs of tuition and transportation for the student’s attendance at the private school for the 2022-2023 school year via direct funding, reimbursement, or a combination of both; and (b) If this case proceeds to litigation and the Parents are a prevailing party on any substantial issue, the Parents will seek an award of attorneys’ fees, related fees and disbursements as permitted by relevant statute.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-7-16 & 24) 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 called (2) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-B & P-T) The Parent withdrew the testimony by affidavit of the witnesses in Parent’s exhibit “C” and “D.” (T17-8 & 61) The DOE cross examined both of the Parent’s affiants. (T-38-47 & 57-9) The Parent also submitted (20) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence, with the exception of Parent’s exhibit “R”. (T-12 & 17-8) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537) The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student with a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]).

It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic

Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

THE DOE’S DEFAULT

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer but the Parent did submit a “Prior Written Notices” in evidence in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-12, 17-

8 & P-K) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

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 testimonial or documentary evidence that it has offered the student a FAPE. (T-7-16, 24) This amounts to a tacit concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case but the Parent submitted “Prior Written Notices” in evidence, which provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e], P-K)

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 rife 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 law] 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)

However, here 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 testamentary and documentary evidence was not rebutted by the agency and the documentary evidence is 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, 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 tacitly 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 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]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. 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 he has requested.

APPROPRIATENESS OF 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 IDEA"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him 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 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)

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 in this case indicates the following: The Parent’s first witness is the student’s mother (PT):

3. In February 2022, [STUDENT NAME] participated in a neuropsychological evaluation with the [REDACTED] ("[REDACTED]") where they diagnosed her with dyslexia, a copy of which is annexed hereto as proposed Parent Exhibit G.

4. On April 15, 2022, I sent an email to [REDACTED] requesting an IEP and attaching the [REDACTED] report.

5. On May 16, 2022, I received an email from the school with a request to return certain forms. On May 19, 2022, I signed and returned the consent packet and forms as requested.

6. On May 25, 2022, I participated in a social history meeting. At the social history meeting, I was told a classroom observation would be conducted of [STUDENT NAME].

7. As of June 15, 2022, I had not received Prior Written Notice ("PWN") of the initial referral or proposed evaluations. I had not received copies of evaluations conducted by the DOE, including the social history evaluation which I participated in, and [STUDENT NAME]'s classroom observation which I believe had occurred.

8. On June 15, 2022, I received a telephone call from the DOE telling me that [STUDENT NAME]'s initial IEP meeting was taking place right then. I stated that I never received notice of this meeting and asked that the meeting be rescheduled.

9. Two days later my husband [NAME] and I virtually attended the IEP meeting. We were told that [STUDENT NAME] did not qualify for an IEP. When we asked for an explanation of how that denial reconciles with the neuropsychological evaluation findings, her below-grade level schoolwork, or [STUDENT NAME]'s behavior in the classroom, we received no appropriate response.

10. On June 27, 2022, I received an email from the school stating that the initial evaluation had been completed and enclosing proposed Parent Exhibit's H and I.

11. On August 22, 2022, through my attorney, we advised the DOE and CSE [REDACTED] of our disagreement with the ineligible determination and the failure to classify and offer [STUDENT NAME] an IEP for the 2022-2023 school year. We received no response to this letter. An accurate copy of the notice is annexed hereto Parent's proposed Exhibit Q.

13. [STUDENT NAME] began [SCHOOL INITIALS] in September 2022, and attends their Achieve Program. [STUDENT NAME]'s anxiety and resistance to attending school has tremendously lessened. She is succeeding at [PRIVATE SCHOOL NAME] and we find it appropriate to meet her complex needs.

16. [PRIVATE SCHOOL INITIALS] is a private school, and we signed a contract for [STUDENT NAME]'s attendance for the 2022-2023 school year totaling $43,900. We have paid this amount in full and request full reimbursement. A copy of the tuition contract is annexed hereto as proposed Parent Exhibit S.

17. [STUDENT NAME] takes a bus to and from school at a cost of $6,000. We have paid this amount in full and request full reimbursement. A copy of the agreement is annexed hereto as proposed Parent Exhibit N.

23. [SCHOOL INITIALS] is an appropriate educational placement for [STUDENT NAME] for the 2022-2023 school year. It meets her needs and she is making academic and social emotional progress.

24. [NAME] and I have cooperated with the DOE throughout the process. We provided all documents requested , made ourselves and [STUDENT NAME] available for all proposed evaluations and meetings, and attended the IEP meeting. (P-T)

The Parent further testified after the IEP meeting; she did not receive any further communication from the DOE about a subsequent IEP meeting. (T-38) She received two letters from the DOE stating that the student was “ineligible.” (Id.)

On cross examination, the witness testified that the student’s teacher in 2nd grade said that the student was reading below grade level, and she saw that the student could not write or spell. (T-39) During the 2021-2022 school year the student was in the 4th grade. (T-40) It is her understanding that the student was diagnosed with dyslexia after the conversations that they had with the neuropsychological evaluator, who told them so and wrote it in the report. (T-47) There was no re-direct examination of the witness. (T47-8)

The Parent’s second and final witness is the School Psychologist and Learning Specialist at the student’s private school. (P-B) She testified as follows:

4. [PRIVATE SCHOOL INITIALS] is an independent, progressive, not for profit school in [NAME], [REDACTED], serving grades kindergarten through twelve. [PRIVATE SCHOOL NAME] is accredited by the New York State Association of independent Schools (NYSAIS). In addition to our mainstream program, we have the Achieve and Bridge programs which are designed to support students with learning differences/disabilities with a focus on meeting the needs of children with language processing, reading, writing, and math disabilities, deficiencies in study skills, organization, as well as attention and executive functioning difficulties. Our mission is to meet the needs and potential of each individual child regardless of their learning needs, and we have the ability to individually design an appropriate program for each student based on their unique learning profile.

7. The [PRIVATE SCHOOL INITIALS] Lower School had approximately 100 students and 13 faculty/staff for the 2022-2023 school year. [PRIVATE SCHOOL INITIALS] Lower School employs an administrative director, teachers, speech and language therapists, school psychologists, and administrative staff.

10. [PRIVATE SCHOOL INITIALS]'s curriculum is informed by New York State learning standards, which are also known as the Common Core

Standards. Teachers rely heavily on multisensory and multi-modal methods of instruction and provide children with a rich variety of materials, experiences, and literature to learn concepts and build skills. All of the courses at [PRIVATE SCHOOL INITIALS], including our Achieve Program classes, are aligned with and informed by the Core Standards and cover the content required by the New York State curriculum. The objective of the Achieve Program is to prepare all of our students for success in life and to get them on par with their mainstream peers.

11. [PRIVATE SCHOOL INITIALS] measures student progress using a variety of sources of information, including formal and informal testing, teacher-designed measures, assignments, class participation, and projects. Teachers use the results to assess how well each student is progressing and adapt instructional pace or methods to better meet individual needs.

12. I am familiar with the student [STUDENT NAME], who was first enrolled at [PRIVATE SCHOOL INITIALS] for the 2022-2023 school year. She was recommended for the Achieve program based on her learning profile and needs as described in her February 2022 neuropsychological assessment from the [REDACTED] as well as observations from her visit to [PRIVATE SCHOOL INITIALS].

13. As stated in the 2022 neuropsychological report, [STUDENT NAME] presents with Attention Deficit/Hyperactivity Disorder - Combined Presentation (ADHD), Specific Learning Disorder with Impairment in Reading, Specific Learning Disorder with Impairment in Writing, Developmental Motor Coordination Disorder, and Generalized Anxiety Disorder (GAD). In addition to the results of [STUDENT NAME]'s neuropsychological report, classroom observations, teacher reports, evaluations conducted and progress reports conducted by [PRIVATE SCHOOL INITIALS], I feel qualified to describe [STUDENT NAME] in terms of her learning profile, needs, strengths, and weaknesses.

14. [STUDENT NAME]'s [PRIVATE SCHOOL NAME] 2022-2023 individualized Achieve program was designed to address her Specific Learning Disorder with Impairment in Reading, her Specific Learning Disorder with Impairment in Writing, her Attention Deficit/Hyperactivity Disorder (combined type), her Generalized Anxiety Disorder, her underdeveloped executive functioning skills (cognitive flexibility, inhibiting impulses, maintaining/sustaining attention, switching tasks, regulating emotions, organizing/planning work, and her weak expressive organizational skills in writing. These challenges necessitated that [STUDENT NAME] receive extensive and intensive academic support to reach her potential and keep pace with her peers. [STUDENT NAME] is a student who needs to be placed in a small, structured, supportive, nurturing, and specialized classroom environment that meets the unique needs of a student with learning differences.

16. [STUDENT NAME] has great potential to succeed if she is provided with the kinds of support and environmental modifications she receives at [PRIVATE SCHOOL NAME], such as a small, structured, supportive, and specialized classroom environment, individualized attention, the use of a curriculum designed to promote her reading, writing, and a multi-sensory and repetitive approach to learning. [STUDENT NAME] is encouraged to complete tasks by modifying instructions (through strategies including, but not limited to scaffolding, modeling, breaking instructions down into smaller steps, reframing directions, repetition of information/instructions, and frequent checks for understanding and refocusing). [STUDENT NAME] is taught reading utilizing multi-sensory methods of instruction, such as OrtonGillingham, with her reading and writing weakness addressed across content areas.

17. As a result of all of the foregoing, [STUDENT NAME] has made progress at [PRIVATE SCHOOL NAME] during the 2022-2023 school year. Given the breadth and depth of the interventions and modifications [STUDENT NAME] receives, she has made improvements.

19. In November of the 2022-2023 school year, [STUDENT NAME] was reading at Fountas and Pinnell Reading Level S (end of fourth grade), and she was averaging 105 words per minute. With the multi-sensory OG program, one-to-one attention, specific praise and positive reinforcement, and ongoing daily targeted activities to strengthen her decoding, automaticity, fluency, and reading comprehension, [STUDENT NAME] has made consistent progress thus far as she is currently reading at a Fountas and Pinnell Reading Level T (beginning of fifth grade) averaging 129 words per minute. [STUDENT NAME]'s anxiety and difficulties with attention manifest by her often rushing through assignments during language arts class (including not always using her decoding strategies appropriately) and reading ahead, which results in missing important information in the story. Since September [STUDENT NAME] is more receptive to teacher feedback and revising her work. She has personally noted that she can "write a summary faster than before. Now I know how to do that. Other improvements include stronger word attack skills, increased rate of fluency, increased reading stamina, sustained attention to a text read over many days, remembering details as new events are encountered, the ability to analyze and interpret character' thoughts and feelings, the ability to use comparison with other texts to assist in interpretation, the ability to infer meaning and demonstrate understanding, and the ability to accurately to summarize material she just read with the appropriate supports.

20. [STUDENT NAME]'s writing class is specifically designed to address her impairment in written expression. This class of seven students takes place three times per week and is co-taught by [NAME] and [NAME]. [NAME] is a Speech and Language Pathologist who earned her Bachelor's

Degree in Education from [NAME] College and a Master's Degree in Speech and Language Pathology from [NAME] College. [NAME] also holds certification as a Teacher of Students with Speech and Language

Disabilities (TSSLD).

22. [STUDENT NAME]'s math class is taught by [NAME], who holds a Bachelor's of Arts in Art History from [REDACTED] University and a Master's Degree in Childhood General Education from [REDACTED]

College of Education. I, [NAME], also push into the classroom during math to provide additional support in [STUDENT NAME]'s math class, as it is designed to address her attentional difficulties to redirect and stay on task.

The class is structured so that math skills are broken down and taught incrementally to allow [STUDENT NAME] to develop a conceptual understanding of a topic and ability to calculate correctly. [STUDENT NAME] was resistant to teacher help at the beginning of the year (covering her paper or verbally refusing assistance); she is now more receptive and will ask the teacher to look over her work. [STUDENT NAME] demonstrates basic math facts, place value, adding, subtracting, multiplying and dividing multi-digit numbers, and working with decimals. She can reliably solve onestep word problems on her own, and sometimes needs teacher assistance to help her unpack multi-step word problems. Occasionally, [STUDENT NAME] will rush to complete her work and make careless errors but is able to correct her mistakes when asked to look over the problem.

23. [STUDENT NAME]'s science and social studies classes are also taught by [NAME], who holds a Bachelor's of Arts in Art History from [NAME]

University and a Master's Degree in Childhood General Education from [NAME] College of Education, in a class of 21 students. [STUDENT NAME]'s individual curricula were modified by her team of teachers as needed to utilize her strengths and at the same time, account for her deficits. For example, [STUDENT NAME] works with a partner when completing work in her textbook and is provided with ample time to complete all assignments.

25. Overall I feel the program that [PRIVATE SCHOOL NAME] provides for [STUDENT NAME] is successful at providing her with an educational benefit. [STUDENT NAME] requires the small classes and intensive supports that [PRIVATE SCHOOL NAME] provides, and she made meaningful progress as a result. (P-B)

On cross examination, the witness testified that “The Achieve Program” is a program that is not just designed for special education. (T-57) She believes that there are around ten children in the program. (T-57-8) The students are not placed in a different classroom and get pulled out for that for more individualized attention or small group classes. (T-58) There was no re-direct examination of the witness. (T-59)

A plain reading of the testimony and documentary evidence in this case makes clear that all of the Parent’s testamentary and documentary evidence is completely uncontroverted. The DOE’s default in this case is a tacit concession that the student was denied a FAPE for the 2022-2023 school year. (Supra) Additionally, the testamentary and documentary evidence summarized above and received in evidence unequivocally indicates that the private school was an appropriate placement for the student for the 2022-2023 school years, in that it is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., Gagliardo, and Berger, supra)

It is important to note that the “reasonableness” standard to adjudge the appropriateness of the Parent’s unilateral placement is well below the other established standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence” and “substantial evidence.” It is perhaps equivalent to the “rational basis” standard of review. The Endrew F decision of the United States Supreme Court requires that requires a student receive an IEP that provide more than a de minimis benefits, applies to the school districts, not the Parents. The record, as indicated above, supports a finding that the private school meets the ”reasonable” standard for a finding that they were an appropriate placement for the student’s 2022-2023 school year.

SPECIAL EDUCATION TRANSPORTATION SERVICES

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]) When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, the Parent’s sole testimony regarding the student’s need for transportation services is as follows:

17. [STUDENT NAME] takes a bus to and from school at a cost of $6,000.

We have paid this amount in full and request full reimbursement. A copy of the agreement is annexed hereto as proposed Parent Exhibit N.

22. Annexed hereto as proposed Parent Exhibit A is a copy of the Due Process Complaint [REDACTED] and I authorized to be filed on our behalf.

It accurately reflects the facts of this matter and our concerns. We seek tuition and transportation reimbursement in the amounts as set forth above. (P-T)

The Parent’s DPC does not address the student’s need for “special transportation” services. (P-A) Beyond that, there is no specific indication in the record as to the student's need for special transportation during the 2022-2023 school year, but as noted above, there is verifiable indication that special transportation was previously requested and received.

The Parent’s affidavit does not speak about “special transportation” services. (Id.) It does not, and the record does not articulate any of the specific reasons cited above that are required as part of the inquiry as to whether the student needs “special education transportation.” (Id.)

It has been long held in the law that "[A]dmissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever, or to whomever made." (See Reed v. McCord, 160 N.Y. 330, 341 [1899]) However, merely showing the statement in the report (here the November 16, 2019 IEP - P-F) is admissible under the admissions exception is not enough to admit it into evidence. Rather, a foundation for the admission of the report itself as a business record must be established. (See Yassin v. Blackman, 188 A.D.3d 62 [2nd Dept. 2020]) Here, the DOE adjudged the student not recommended for special education services and no IEP is submitted in evidence wherein the DOE recommends the student receive “special transportation” services. There is no “admission” by the agency that the student needs “special transportation” services for the 2022-2023.

Accordingly, the hearing record does not support a finding that the student would be denied a FAPE if there was a lack of provision for “special transportation.”

However, this does not preclude a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it must consider transportation of the student to the private school in accordance with Educ. Law 3635; 4402[4][[d].

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 upon the DOE’s DEFAULT and after INQUEST 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 costs, expenses and tuition for the student’s attendance at the private school for the entirety of the student’s 2022-2023 school year at the private school via direct funding, reimbursement, or a combination of both; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST 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 a new IEP for the student’s 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: March 28, 2023

New York, New York Edgar De Leon - I.H.O.

NOTICE OF RIGHT TO APPEAL

JWithin 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)