New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 243167

NYS Identifier Number: 592559

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date: 02/09/23, 03/28/23 & 09/06/23

Actual Record Close Date: 12/08/2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 03/28/23 (V)

[REDACTED] DOE Representative DOE 03/28/23 (V)

[REDACTED] Attorney PARENT 09/06/23 (V)

[REDACTED] Parent PARENT 09/06/23 (V)

[REDACTED] Parent PARENT 09/06/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing Request 11/30/11 PARENT 19 pages

B. DOE Email Acknowledging 12/01/22 PARENT Receiving the Impartial Hearing Request 02 pages

C. Email from the Parent 08/11/22 PARENT Requesting an Individual Education Plan and Consenting to Evaluations With Attached Neuropsychological Evaluation And 2021 to 2022 Spring Semester Report February 2022 35 pages

D. Ten-Day Letter 08/18/23 PARENT 05 pages

E. DOE Response to 08/30/22 PARENT Document D 01 pages

F. Email to REDACTED 10/04/22 PARENT with Attached Letter to REDACTED, Letter from REDACTED, Letter from REDACTED, and Letter from REDACTED, Ph.D., 07 pages

G. Email from to REDACTED,10/31/22 PARENT Et al, with attached October REDACTED School Reports 10 pages

H. Letter to REDACTED 11/08/22 PARENT 04 pages

I. Letter to REDACTED 11/14/22 PARENT 04 pages

J. Notice of Appearance 01/11/23 PARENT 01 pages

K. Email from DOE Advising 01/19/23 PARENT 01 pages

L. Of the Appointment of a Hearing Officer Email Correspondence 02/17/23 PARENT With the DOE regarding The Timeliness and 03 pages

M. Sufficiency of the DOE Response to the Impartial Hearing Request DOE Response to the 02/17/23 PARENT 03 pages

N. Impartial Hearing Request REDACTED School N/A PARENT Program Description 05 pages

O. Weekly Schedule N/A PARENT 01 pages

P. Attendance Card 04/03/23 PARENT 01 pages

Q. Tuition Affidavit 09/12/22 PARENT 01 pages

R. Enrollment Agreement, 2022-2023 PARENT 05 pages

S. Proof of Payment 05/13/22 and PARENT 08/15/22 03 pages

T. Affidavit of REDACTED 06/05/23 PARENT 19 pages

U. Affidavit of REDACTED 06/02/23 PARENT 12 pages

On. January 19, 2023, 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 eight (8) 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 December 01. 2022. The Impartial was held on September 06, 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 her educational planning. The Parents served the DOE on August 18, 2023 with their 10 day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (D) At the impartial hearing, the Parent seeks the following relief:

• Tuition reimbursement 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 twenty one (21) 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 failed to appear at the hearing and did not provide any communications as to their whereabouts or reason for nonappearance. (TR-13-14)

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE.

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

The DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the 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} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and other relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 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 that the student was denied a FAPE for the 2022-2023 school year.

The Parents witness, REDACTED, who is employed by the private school as one of the Co-Education Chairs, testified on direct via affidavit:

1. “At REDACTED, we believe that how you feel impacts how you learn. REDACTED has a counseling program that is intertwined with our academic program. At REDACTED, our School Counselors work with our teachers to help develop and provide each of our students with individual strategies to help them function in the classroom setting.

2. Every student at REDACTED is assigned to a specific School Counselor with whom he or she can develop a trusting and supportive relationship. The counselor works to support the student in all areas. For example, if a student feels a certain way about a particular academic subject, then the School Counselor will coordinate with the student’s teacher(s) of that subject to develop strategies individual to the student to allow the student to function and learn in the classroom.

3. REDACTED is an ungraded school in which students are grouped according to their age, academic, and emotional level into “bridge” classes. So, for example, there are Kindergarten-first-grade classes, first-second-grade classes, and so on so that a kindergartener would not be grouped in a class with a second-grader. Instead, our students are generally grouped within one school-year of each other in their classes.

4. There are no more than 11 students in each class and each class is staffed by two licensed teachers, one Head teacher and one Associate teacher.

5. In addition to having had frequent opportunities to interact with REDACTED prior to testifying today, I have had the opportunity to review REDACTED file and to talk to REDACTED parents and to all of the teachers and special education and related service providers who are working with REDACTED at REDACTED.

6. In addition, I am personally familiar with REDACTED. I have known and had opportunities to interact with and observe REDACTED at REDACTED where she has been a student since September 2022.

7. According to the records we maintain at REDACTED and based upon my conversations with others who worked with REDACTED at REDACTED, I am aware that REDACTED joined the REDACTED community in September 2022 and has attended school at REDACTED continuously since that time. Based upon all of the foregoing, I feel qualified to describe REDACTED in terms of her learning profile, needs, strengths, and weaknesses.

8. Based on my review of REDACTED file and the information provided to REDACTED by REDACTED parents, it is my understanding that, prior to starting school at REDACTED, REDACTED attended school at the REDACTED in Manhattan for her kindergarten and 1st-grade school years (the 2020-2021 and 2021-2022 school years). REDACTED is, upon information and belief, a private general education school that has a reputation for being nurturing and for having small classes.

9. Based on what I learned from reviewing REDACTED file and from speaking to REDACTED parents, it is my understanding that even the small, nurturing classes into which REDACTED was placed at REDACTED and the supplementary supports t provided to her by the DOE, that included occupational therapy, were not sufficient to support her learning. And that REDACTED advised the parents that REDACTED could not be able to remain at the school after the end of her 1st-grade school year in June 2022.

Because of her disability-related learning challenges.

10. It is my further understanding that REDACTED parents brought REDACTED for a neuropsychological evaluation and that she was diagnosed as having numerous learning challenges including Attention-Deficit-Hyperactivity-Disorder – Combined Type, Separation Anxiety, Nonverbal Learning Disorder, Specific Learning Disorder with Impairments in Reading, and Specific Learning Disorder with Impairments in Written Expression (see, Exhibit C at p. 13).

11. The neuropsychologist further determined that REDACTED had learning challenges that included significant emotional difficulties, inattention, hyperactivity, and learning issues that caused her academic skills lag behind the usual expectations for of her age.

The report noted that even though REDACTED was already placed in a small classroom with supports, she was not progressing in school and that, she required a full-time placement in a small, nurturing, full time special education classroom in which she would be taught in a way that addressed her learning needs. The evaluator further stated that REDACTED needed to be taught using evidence based, structured, sequential, multisensory instruction in reading and writing based in Orton Gillingham (the way we teach her at REDACTED) and that she needed to be placed with children whose academic and cognitive capacity was similar to hers (see, Exhibit C at p. 14).

12. From what I understand, although REDACTED was provided with support through the DOE at REDACTED, her parents had never asked the DOE for an IEP until sometime in or around August 2022, when they contacted the DOE to inquire about having REDACTED provided with an IEP (see, Exhibit C at p. 1).

13. REDACTED is [REDACTED]-years-old and in a 3rd-grade class at REDACTED.

14. She is an engaging, bright yet sensitive and self-directed child who can be oppositional and stubborn and who is also vulnerable. Although she is well-meaning, wants to please, and has good academic potential she is behind academically. REDACTED is a student who is aware of her challenges and, although she is friendly, she has difficulty in terms of getting along with peers. As a result, REDACTED has issues with self-esteem and confidence. REDACTED presents with heightened anxiety, especially for someone of her age and cognitive potential. REDACTED struggles with her learning differences, attentional challenges, executive functioning, issues with understanding pragmatic language, rigidity, stubbornness, and with her general quirkiness.

15. As a result, I believe that REDACTED needs a placement not just in a small school but also in a small structured classroom setting where rules and routines are clearlyestablished and where what is expected of her is clear. In order to stay focused and organized throughout academic subjects, REDACTED requires graphic organizers, checklists, visual aids, and focusing prompts.

16. REDACTED anxiety in the classroom can interfere with her participation in learning. Breaking down tasks into manageable chunks and previewing concepts is something REDACTED needs so she can process information and learn. This allows her to achieve increased confidence across academic areas.

17. REDACTED has difficulties with reading and writing (both in terms of the mechanics of writing and with getting her thoughts from her head onto the paper) and, as previously stated, suffers from issues relating to low self-esteem and a general lack of confidence in her academic and interpersonal abilities. REDACTED has poor emotional regulation skills; she can be rigid and she is easily frustrated in addition to being extremely sensitive.

18. REDACTED needs a structured school and classroom environment where routines and her schedule can be and are reviewed throughout the day. As stated above, she needs to be taught using evidence-based multisensory-approaches to learning, like the approaches we use to teach her at REDACTED. Further, small group settings and one-to-one instruction is necessary for REDACTED to maintain her focus.

19. As of the start of the 2022-2023 school year, although she was age-appropriate for the 3rd-grade, REDACTED was only able to read and write on a 1st grade level and only with significant support and structure.

20. At the beginning of the school year, REDACTED knew her letters and letter sounds and could to tap out the sounds in consonant-vowel-consonant (cvc) words. She could also blend them together to read words, had strong sight word recognition, and was working on short 'a' word families.

21. However, she needed (and we provided her with) support to Increase her fluency with reading sentences containing cvc words. She would often confuse the 'a' and 'i' vowel sounds and benefited from the Sounds In Motion visual cues to remember the correct sounds and better differentiate between the two. REDACTED was also prone to confuse the spelling of sight words and often flipped the letters (i.e., si instead of is).

Additionally, she wrote in mostly capital letters and needed joint editing opportunities to show her correct letter formation in a neutral, non-shaming way. REDACTED could not always attend to the lesson and required (and was afforded) breaks throughout the reading period to help her sustain focus and to complete her work. She relied on and was provided with one-on-one support and direction when writing words and sentences dictated by the teacher.

22. Through my participation in and observations of CSE review meetings with the DOE, personal research, and discussions with colleagues who work in DOE schools, it is my understanding that, the DOE’s 12:1 special class in a community school program classes are not geared towards students with attentional, executive functioning, and emotional regulation issues nor learning needs like REDACTED.

23. Further, I do not believe that the 12:1 classes that I have had described to me can teach children using the Orton-Gillingham, Basic Writing Skills, and Saxon Math, approaches that we use with REDACTED at REDACTED that I believe REDACTED needs so she can learn.

24. At REDACTED, REDACTED was and is being taught using Orton-Gillingham and Saxon Math. We use Orton-Gillingham and Saxon Math with REDACTED because those approaches are work with her and are making it possible for her to make progress in terms of her reading, writing, and mathematical skills

25. I believe that REDACTED was and is appropriately placed at REDACTED for the 2022-2023 school year.

26. Further, I do not believe it would be appropriate to move REDACTED to a larger classroom or to a bigger school environment. In fact, based upon what I have observed of REDACTED, I fear that moving her to a larger setting would be counterproductive and would make it difficult, if not impossible, for her to get anything out of or benefit from being in school.

27. If moved to a larger classroom or school environment, I fear that REDACTED would not be able to attend. She would be distracted to the point of constant dysregulation that, to someone who was not familiar with REDACTED, she would seem like she was engaging in maladaptive, aggressive, or attention seeking behaviors instead of what is for REDACTED, an inability to articulate her wants and needs when distracted and overwhelmed by her environment.

28. Based on all of the foregoing, I do not believe that REDACTED would be able to function or make any educational progress if she was forced to attend school in a DOE community school. Conversely, I believe REDACTED made and is making meaningful progress at REDACTED.

29. Accordingly, I believe REDACTED placement at REDACTED is appropriate and that REDACTED is addressing REDACTED learning needs.”(Parent’s Exhibit-“T)

The DOE failed to appear and as such, did not cross-examine the witness.

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. (Parent’s Exhibit-“T)

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 directly pay and or reimburse for the cost of the student’s tuition and related services at the private school for the time the student attended the private school during the 2022-2023 school year.

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 any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

Sharifa Milena Nasser

DATED: December 11, 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.