New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591530 - NYC: 242313

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney DOE 02/28/23 (V)

[CONFIDENTIAL] Attorney PARENT 02/28/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

A Request for Impartial Hearing 11/16/22 8 B Notice of New IH Request Received 11/16/22 2 C Motion to Schedule 01/05/23 1 D Notice of End of Resolution Period 01/05/23 2 E Notice of Change in Hearing Officer 01/09/23 1 F IEP 11/06/19 22 G IEP 08/11/21 31 H Neuropsychological Evaluation 10/23/20 19

I Functional Behavioral Assessment 06/15/21 J Behavior Intervention Plan 06/15/21 K Functional Behavioral Assessment 10/18/22 L Behavior Intervention Plan 10/18/22 M Annual Report, Speech and Language Therapy 03/22/21 N Annual Review, Physical Therapy 05/08/21 O Annual Review, Occupational Therapy 05/30/21 P Annual Review, Academic, 2021-2022 06/16/21 Q Progress Report for Goals and Objectives, 2021-2022, Q5 08/17/22 R Annual Review, Occupational Therapy 09/30/22 S Annual Review, Physical Therapy 09/30/22 T Annual Review, Speech-Language Therapy 09/30/22 U Class Schedule, Summer 2022 2022 V Parental Guarantee of Tuition, 2022-2023 07/07/22 W Tuition Affidavit, 2022-2023 09/07/22 X Attendance Record, 2022-2023 02/02/23 1 Y [REDACTED] Brochure Undated Z Class Schedule, 2022-2023 2022-2023 1 AA Email to CSE-[REDACTED], with letter and enclosure 10/25/2 BB Letter to CSE-[REDACTED], with new evaluation, enclosure 10/25/CC Annual Review Notes 08/11/DD Prior Written Notice package Undated

13 EE Parent's ten-day notice letter 06/18/3 FF DOE acknowledgment of receipt of ten-day notice letter 06/18/1 GG Intentionally Omitted

NA NA HH Affidavit, [NAME], Parent 02/15/II Affidavit w/ [REDACTED], [NAME], [NAME] Academy 02/17/15 JJ FOFD No. 203176 02/14/16 KK FOFD No. 224522 04/12/LL DOE Due Process Response 02/03/MM DOE Email with Due Process Response 02/03/1 NN Pendency Implementation Agreement, No. 242313 01/27/1 OO Prior Written Notice (Notice of Recommendation) 11/10/9 PP Annual Review, Academic 10/12/4 QQ Progress Report, 2022-2023, 2Q 02/15/23 25

RR Certification of Exhibits 02/21/23 PARENT 02

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 a ([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 February 28, 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 16, 2022. The DPC is carried under New York City (“NYC”) Case No. 242313. 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) An “Order on Pendency”; and (b) A finding that the Department of Education failed to offer to the Student an appropriate program and placement for the 2022-2023 school year, that the program provided to the is appropriate, and that there exists no equitable bar to full public funding of the Student's non-public school tuition for the 2022-2023 school year; and (c) An order that the Department of Education will pay directly to the private school the Student's tuition for the twelve-month 2022-2023 school year, minus the amount of any parental payment toward those costs; and (d) An order that the Department of Education will continue to provide special transportation between the Student's home and the private school for the remainder of the 2022-2023 school year; and (e) An order that the Department of Education convene a meeting of the Student's IEP team to develop a procedurally and substantively sound IEP based on current assessments of the Student's abilities and needs.

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-8-15) 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 (3) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-W, P-HH & P-II) The DOE declined to cross examine the Parent’s affiants. (T-15) The Parent also submitted (43) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-15) 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-8-15 & P-DD & P-OO) “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-8-15) This amounts to a 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-DD & P-OO)

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 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)

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 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 2020-2023 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 works for a company that provides accounting services for the private school. (P-W) She testified that the student’s tuition at the private school for the 10-month 2022-2023 school year is $141,618.75. (Id.)

The next witness for the Parent is the student’s father. (P-HH) He testified as follows:

4. I was invited and attended the August 11 ,2021, IEP meeting. The IEP developed from this meeting had a projected start date of September 1, 2021, and a projected annual review date of August 11, 2022.

5. I attended the August 11, 2021, lEP meeting and [PRIVATE SCHOOL NAME] Academy staff also attended.

6. The [PRIVATE SCHOOL NAME] Academy staff provided the DOE school personnel with the recent FBA, BIP, annual review and progress reports.

7. At the IEP meeting. the DOE school personnel did not review [STUDENT NAME]’s FBA or BIP.

8. At the IEP meeting the [PRIVATE SCHOOL NAME] Academy staff reported on the classroom progress [STUDENT NAME] was making at [PRIVATE SCHOOL NAME] Academy.

9. At the IEP meeting the [PRIVATE SCHOOL NAME] Academy staff reported that [STUDENT NAME] benefits from a small, structured environment with ABA across all settings, and discrete trial learning.

10. At the IEP meeting it was discussed that [STUDENT NAME] requires a 1:1 paraprofessional throughout the day to implement his BIP and for safety reason.

11. The DOF staff did not ask me for my concerns at the IEP meeting of August 11, 2022.

19. The October 23, 2020, neuropsychological evaluation report made recommendations for [STUDENT NAME] including, 1:1 intensive instruction implementing a researched-based, structured program of Applied Behavior Analysis (ABA), 1:1 instruction using ABA. staff training under the supervision of a board-certified behavior analyst (BCBA), that he requires a functional behavior assessment conducted by a BCBA. and a behavior intervention plan.

20. The neuropsychological evaluation report also said that [STUDENT NAME] needed a 12-month program to prevent regression.

23. My son has attended [PRIVATE SCHOOL NAME] for several years now and l have seen him make progress and believe he needs ABA therapy services, tasks broken down, and a 1:1 professional to continue his educational and social-emotional progress.

24. [PRIVATE SCHOOL NAME] Academy provides regular progress reports on my son's goals and objectives. They also provide me with annual reviews in academics and his related services, like OT, PT and speech/language. These reports help me understand his performance and progress being made at school. (P-HH)

The Parent’s third and final witness is the Assistant Principal for student’s with Autism at the private school. She testified as follows:

5. The [PRIVATE SCHOOL NAME] Academy is a full-time special education school located in [REDACTED], New York.

6. The primary objective at [PRIVATE SCHOOL NAME] is to allow each student to develop skills, both academic and behavioral, so that they can function as independently as possible in their daily lives. Students are accepted for who they are. Students at [PRIVATE SCHOOL NAME] receive a blend of Applied Behavioral Analysis ("ABA") and Collaborative ProblemSolving ("CPS"),' both delivered with an emphasis on social thinking to help students become aware of their individual symptoms and students are explicitly taught how to self-manage and regulate themselves.

7. [PRIVATE SCHOOL NAME] is a school primarily for students on the Autism Spectrum between the ages or five and twenty-one years of age. [PRIVATE SCHOOL NAME] serves children from kindergarten age through, and including, their last year of high school eligibility (which, depending on the individual student, generally occurs between the ages of 18-years-old and 21 -years-old).

8. [PRIVATE SCHOOL NAME] students are generally diagnosed with one or more of the following neurobiological disorders ("NBDs"): Autism, Anxiety Disorder, High functioning Autism (also known as Asperger's Syndrome), Attention Deficit Hyperactivity Disorder ("ADHD"), Depression, Obsessive Compulsive Disorder ("OCD"), and Nonverbal Learning Disability ("NVLD"). Our students' behavioral problems are the result of language deficits, compulsions, disinhibition, fears, hyperactivity, impulsions, obsessions, mood swings, and social skill deficits.

14. The [PRIVATE SCHOOL NAME] Academy's curriculum integrates developmentally appropriate concepts at each grade level. Instruction is completely individualized to each child's learning style, specific needs, and level. Following New York State Common Core Standards, we use projectbased and authentic learning in each thematic unit.

18. I understand that a copy of the informational brochure of [PRIVATE SCHOOL NAME] Academy programs was submitted in the Parent's disclosure. The informational brochure accurately describes the programs and is current for the 2022-2023 school year. Ex. EE

20. At [PRIVATE SCHOOL NAME], each of our classrooms is staffed with a teacher and at least one teaching assistant. In addition to the teacher and teaching assistant, we usually have one or two one-to-one paraprofessionals in each classroom, depending on the needs of the students in that particular classroom. Most of our classes have no more than six students. Some of our high school classes, however, may have up to eight students.

21. At [PRIVATE SCHOOL NAME], we also provide related services to our students in school. Specifically, we provide counseling, Speech and Language Therapy ("SLT"), Occupational Therapy ("OT"), and Physical Therapy ("PT") to each of om students as needed.

22. [PRIVATE SCHOOL NAME] requires that all of our teachers have either a content area degree for high school or a special education degree for the lower grades. ln addition to requiring our teachers to have the requisite degrees as stated in the previous sentence and to undergo professional development (as explained below), at least seventy percent of our teachers have their NYSED-issued teaching licenses and for those who may not, the minimum requirement is that they are enrolled in school and that they are working towards obtaining a graduate level special education degree. Generally, our teachers have a master's level degree in a content area, or they have a bachelor's level or master's degree and are working on taking their state exams to get their certification.

24. In addition to teachers, [PRIVATE SCHOOL NAME] also employs teaching assistants. The role of the leaching assistants at [PRIVATE SCHOOL NAME] is to support the teachers and the students but, in supporting the teacher, they may gather materials that are supplemental. Further, if a teacher was absent or if the teacher has to be out of the classroom for a meeting, the teaching assistant would become the primary leader of that classroom. The leaching assistants work with our student on a one-to-one basis and in small groups as needed.

25. Teaching assistants at [PRIVATE SCHOOL NAME] must have at least have 2-years of college.

26. [PRIVATE SCHOOL NAME] also employs and uses one-to-one assistants, also referred to and known as paraprofessionals, in our classrooms.

31. We also have a guidance counselor, a social worker, and a mental health counselor, all of whom are licensed in their respective disciplines by New York State and who, like the speech therapists, work across disciplines to make everyone working with the student is updated and aware of the students' needs.

34. Our Board-Certified Behavior Analyst ("13CBA") often conducts functional behavior assessments ("FBAs") and writes/oversees behavior intervention plans ("BIPs"), or action plans.

35. Our BCBA analyzes student behavior, writes functional behavior plans, and serves as a resource to support our staff and develop plans and interventions to empower our students to succeed whenever one is struggling.

38. At [PRIVATE SCHOOL NAME], we also have specially trained staff that we call crisis intervention specialists. Many students on the Autism Spectrum often need assistance when they become overwhelmed, dysregulated, or are struggling with something. Because of their rigid thinking, they may get stuck. In other words, they can become highly perseverative and cannot move past a thought or situation. They may engage present with aggression, act out, or tantrum when they get stuck. Our intervention specialists, like the rest of our staff, arc trained in Collaborative Problem-Solving. The intervention specialists arc further trained in what's called Crisis Prevention and Intervention ("CPl") in case a student is not safe and needs to be held to be kept safe. They are trained to keep and responsible for keeping the children safe. But their primary job really is to intervene when a student is really having a hard lime, for example when a student cannot stay in a classroom because it is too stimulating. They provide therapeutic intervention for the students in need and the majority of the interventions they provide are therapeutic. Physical interventions are only used as a last resort when de-escalation cannot be achieved through therapeutic means.

47. At [PRIVATE SCHOOL NAME], especially in the [REDACTED] Program, we employ Applied Behavior Analysis ("ABA") as an instructional methodology to engage with and teach our students.

53. All staff members, including assistant teachers and one-to-one aides, initially receive intensive training on neurobiological disorders, ABA, and Collaborative Problem-Solving. In addition, they attend weekly education classes that address different topics related to our student population.

56. At [PRIVATE SCHOOL NAME], we group students into classes by looking at their ages, functional levels, and social skills levels.

64. I am personally familiar with [INITIALS]. He is a student in the Behavioral, Academic & Social Enrichment ([REDACTED]) program middle school level. He has attended school at [PRIVATE SCHOOL NAME], since the 2019-2020 school year.

66. The parent re-enrolled [INITIALS] in the [PRIVATE SCHOOL NAME] Program for 2022-2023 and entered into a Parental Guarantee of 2022-2023 tuition. The 2022-2023 school program for 2022-2023 included the summer program and the 10-month program. Ex. V.

68. I am familiar with [INITIALS] Academic Reviews, dated 6/16/2021 (Ex. P) and 10/12/2022 (Ex. PP), because we use such reviews for team meetings and collaboration to ensure [INITIALS] is properly placed in the correct program and making appropriate progress.

69. I am familiar with [INITIALS] Progress Report for Goals and Objectives, 2021-2022, 5th Quarter, dated 8/17/2022. This report indicates the Student's progress toward meeting his goals and is specifically related to the Student's IEP Goals. This report, along with other reports help evaluate the Student's overall achievement in relation to classmates and educational curriculum. Ex. Q.

70. [INITIALS] is making progress on his annual goals as documented in his Progress Report, 2022-2023, 2nd Quarter. Parent's Ex. RR

72. [INITIALS] receives intensive teacher support using the principles of Applied Behavior Analysis ("ABA") in a highly structured classroom environment with verbal and gestural prompting.

73. The use of ABA is essential for [INITIALS] to be able to maintain his attention and be available for learning. He requires a structured, nurturing environment with adequate opportunities for breaks.

76. [INITIALS] requires and receives a designated 1:1 paraprofessional.

79. [INITIALS] is in a classroom at [PRIVATE SCHOOL NAME] with a 6:1:1 ratio.

80. [INITIALS] has made progress in his academic abilities while attending [PRIVATE SCHOOL NAME] through the use of ABA methodology.

81. [INITIALS] is a student in the [REDACTED] program at [PRIVATE SCHOOL NAME]. The brochure in the parent’s disclosure accurately reflects the [PRIVATE SCHOOL NAME] Academy programs. Ex Y.

87. As a result, in my opinion, which is based on, among other things, my education and years of experience, my review of [INITIALS]’s file, my conversations with his teachers and other special education and related service providers from [PRIVATE SCHOOL NAME], and my observations of and interactions with [INITIALS], that he needs to be placed in a 12-month educational program in a full-time, self-contained, highly structured and supervised special education school and classroom.

92. [INITIALS] received and continues to receive individual physical therapy, occupational therapy, speech-language, services as indicated on his Summer 2022 and 2022-2023 class schedules. He also receives special education in academics - math, social studies, ELA, health/science, and specials in activities of daily living (ADL). gym, music, social thinking, art, life skills and pre-vocational training. Exs. U and Z.

107. At [PRIVATE SCHOOL NAME], [INITIALS] was taught using ABA therapy during the 2020-2021,2021-2022, school years and he is being taught using ABA therapy during the current, 2022-2023 school year.

109. Based on everything set forth above, I believe that [INITIALS] was appropriately placed at [PRIVATE SCHOOL NAME] for the 2022-2023 school year. I believe [INITIALS] was (and continues to be) appropriately placed at [PRIVATE SCHOOL NAME] because he has made and continues to make gains. His communicative, behavioral, academic, self-help, verbal, activities of daily living, and other skills all moved in the right direction during the 2021-2022 school year and Summer 2022 program and are all continuing to move in the right direction during the current 2022-2023 school year. At [PRIVATE SCHOOL NAME], we have seen and continue to see improvement in [INITIALS]'s academic skills, communicative skills, his behaviors, and his ADL skills. (P-II)

The DOE declined to cross examine the Parent’s affiants. (T-15) Accordingly, 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)

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, although the student’s IEP dated August 11, 2021 does not provide for the student receive Special Transportation service (P-G), his IEP dated November 16, 2019 does provide for him to receive Special Transportation services. (P-F) 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. (P-

G) It does not, and the record does not, specify or 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 and the Parent agreed that the document be received in evidence. (T-15) As such, the student’s IEP dated November 6, 2019 is deemed admissions by the DOE as to the student’s needs. (P-F) However, that is an admission as to the student’s need for “Special Transportation” services, for at best, the student’s 2020-2021 school year. It is not an admission of the student’s need for “Special Transportation” service for the 2022-2023 school year, at issue in this case. In fact, the DOE’s admission in this regard was rescinded when it denied that the student required those services in his subsequent IEP dated August 11, 2021. (P-G) Accordingly, the hearing record does supports a finding that the student would be denied a FAPE if there was a lack of provision for “special education 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 tuition and related cost and expenses at the private school for the entirety of the student’s 12-month 2022-2023 school year thereat, minus the amount of any parental payment toward those costs; 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 his 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 16, 2023

New York, New York Edgar De Leon - 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)