New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] DOE Representative DOE 02/15/23 (V)

[REDACTED] Parent PARENT 02/15/23 (V)

[REDACTED] Attorney PARENT 04/24/23 (V)

[REDACTED] Mother PARENT 04/24/23 (V)

[REDACTED] Witness PARENT 04/24/23 (V)

[REDACTED] DOE Representative DOE 04/24/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Request for Due Process 12/23/22 PARENT Proceeding/Notice of Appearance 09 pages

B. IEP 05/26/20 PARENT 14 pages

C. IEP 11/30/22 PARENT 25 pages

D. Student Contract Program 06/16/22 PARENT Description and Curriculum 21 pages

E. Affirmations Regarding 02/27/23 PARENT 03 Tuition Breakdown and Payments

F. Curriculum Schedule N/A PARENT 2022/2023 01 pages

G. Student Attendance N/A PARENT 2022/2023 01 pages

I. H Assessments, Plans, N/A PARENT 28 Reports Ten-Day Notice from 06/16/22 PARENT Parent to DOE, 6/16/22, 02 pages

J. Follow-Up Ten-Day 08/15/22 PARENT 02 Notice from Parent to DOE Request for Evaluations K FOFD 09/10/21 PARENT 15 pages

L. Affidavit of N/A PARENT [REDACTED] 10 pages

M. Affidavit of 04/21/23 PARENT [REDACTED] 02 pages

1. Request for Reevaluation 01/13/22 DOE 01 pages DOE

2. IEP 11/30/22 DOE 24 pages DOE

3. Prior Written Notice of 12/07/22 DOE Recommendation 11 pages DOE

4. Speech-Language 10/20/22 DOE Evaluation 11 pages DOE

5. Occupational Therapy 10/27/22 DOE 08 Evaluation DOE

6. Teacher Report 11/03/22 DOE 02 pages DOE

On. January 26, 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 fourteen (14) 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 23, 2022. The Impartial was held on April 24, 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”) dated May 26, 2020, is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for his educational planning. The Parents served the DOE on June 16, 2022 with their 10-day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (I) At the impartial hearing, the Parent seeks the following relief:

• Tuition reimbursement and 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 six 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 sixteen (16) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

DOES’ DEFAULT

The DOE failed to call any witnesses to testify on its behalf and submitted six documents in evidence.

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

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain

v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

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

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the 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 DOE also conceded on the record that they were waiving a Prong 1 case. (T-13) The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

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

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every 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] Program Supervisor at the private school testified on direct via affidavit:

1. [REDACTED] attended and attends the [REDACTED] for the extended 12-month 2022-2023 school year. During that time I observed [REDACTED], spoke to his teachers, worked with them to create his individual curriculum, reviewed his formal and informal tests, participated in his coordination meetings with our providers within the school, oversaw his individual behavioral plan and academic progress, and ensured that he was utilizing our program and benefiting from our program throughout the school year by identifying and working with his team as they identified his weaknesses and worked to create replacement techniques, preventative methods, and a plan for his success throughout the extended 2022-2023 school year.

2. To address his specific needs and challenges when he began the school year, the [REDACTED] began by conducting a Functional Behavior Assessment of [REDACTED] to assess his problem behaviors and their functions. With the collaboration of his teachers and providers, the [REDACTED] generated and supervised the implementation of an individualized behavior plan for [REDACTED] and monitored his progress through careful data collection using the Rethink platform.

3. [REDACTED] entered the [REDACTED] in the 2022-2023 school year with delays in multiple areas including socially, behaviorally, cognitively, and academically. His communication, behavioral and social deficits caused him to engage in a variety of maladaptive behaviors. [REDACTED] struggled significantly in all areas due to his communication delays and struggled significantly with his expressive and receptive language skills.

4. Social settings were a struggle for [REDACTED]. He struggled to engage in appropriate social behaviors, and to communicate, which adversely affected his abilities. He had difficulty picking up on social cues, was unable to engage in appropriate social interactions, and engaged in frequent social withdrawal. Although [REDACTED] presented with a considerable vocabulary repertoire, he did not use the words in an appropriate context. He did not reciprocate friendly gestures from peers and instead responded awkwardly. When approached by a peer, he responded inappropriately, making them feel uncomfortable. He asked them why they are talking to him and what they wanted from him. He was quiet and preferred remaining on the side during conversations. He had the ability to initiate conversation but was unable to maintain it. He was unable to elaborate on his responses and therefore kept his conversations short. He missed social cues due to his inability to understand the nuances of the English language. He lacked functional play skills and was unable to engage in peer play. He presented with poor self-confidence, required constant support and compliments, and was dependent on others for approval. He was very sensitive and reacted strongly toward peer’s comments. He was frequently insulted and cried and tantrumed easily when insulted. He withdrew himself from social settings and engaged in restrictive and repetitive play and refused to expand his repertoire. He therefore had difficulty conversing with his peers. He only showed interest in him iPad, movies, and video games. He was unable to express his emotions and instead tantrumed or cried. and tantrumed when he did not get what he wanted.

5. [REDACTED] presented with a series of maladaptive behaviors which impeded on his ability to function and perform at the level of his peers. He experienced sensory overload when he heard loud noises and reacted in an extreme manner to stimulating events. He would cry, scream, cover his ears and run out of the room. He displayed helplessness when presented with a problem. He did not attempt to problem solve and instead waited for assistance. He stimmed during unstructured time, jumped in place and made awkward hand movements. [REDACTED] did not have the ability to express his feelings and mand for what he wanted, and instead tantrumed excessively. He was non-compliant and ignored directives given to him.

6. [REDACTED] was cognitively delayed. He struggled to recall or retain information and required frequent repetition. He had difficulty processing information due to his language deficits.

Classroom settings were a struggle for [REDACTED]. He was sensitive to loud noises and cried, screamed and covered his ears to loud noises and stimulating events. He displayed learned helplessness when faced with a challenge and did not mand for help. He was unable to complete tasks without constant prompting and assistance. He ignored teachers’ directives, struggled to maintain joint attention, and was unable to focus for longer than 5 minutes. He was easily distracted by environmental stimuli and required assistance to refocus. He presented with poor attention to task. He would initiate a task and stop halfway through in which he required constant redirection and verbal cuing to finish the task. He presented with difficulty in his fine motor skills, poor bilateral hand skills, poor motor planning, and poor attention span. He struggled with motor planning skills, which greatly impacted his organization in and out of the classroom.

7. Academically, [REDACTED] was below grade level in math and ELA. He struggled to keep up with grade work. He had difficultly with grasping mathematical concepts and interpreting and solving word problems on his own. He found it difficult to work with his peers in a group project or to work with a partner. Vocabulary and reading comprehension were weak points.

He had trouble paraphrasing and summarizing what he read and had difficulty with tasks that required higher order thinking skills based on interpretations, such as interpreting an author’s point of view. His writing was not legible. His expression through writing seemed to be somewhat stunted based on his lack of consistent communication with others. He struggled to employ proper punctuation when crafting individual sentences, was limited to only writing one to three sentences, and found it difficult to complete a paragraph. He tended to write incomplete sentences with improper verb tenses, structure, and capitalization. He had trouble maintaining dynamic tripod grasp while writing and fatigued very quickly.

8. For the 2022-2023 school year, [REDACTED] unique needs required a highly-structured program in a classroom with a low student-to-teacher ratio to minimize distractions and to maximize individualized attention. He required a behavior intervention plan and social skills instruction to help him maintain appropriate classroom behaviors and to enable him to focus on classroom instruction and tasks. [REDACTED] required a program with modifications and accommodations in the classroom, and differentiated instruction to help him learn. He needed an extensive amount of individualized attention, frequent prompts, repetition, modeling, redirection, and encouragement to follow through with assignments.

9. For the 2022-2023 school year, [REDACTED] is in the 8th grade. He is in a classroom with up to 12 students in total. There are two teachers in his classroom at all times, including [REDACTED] who was and is a licensed and certified special education teacher in the State of New York. [REDACTED] also receives related services through the [REDACTED] during the 2022-2023 school year, including Counseling which was provided by [REDACTED], Speech-Language Therapy which was provided [REDACTED], Occupational Therapy which was provided by [REDACTED], and LBA/BCBA supervision which was provided by [REDACTED]. These providers were and are qualified and licensed by the State of New York to provide those services.

10. An individualized behavioral plan was developed and implemented for [REDACTED], and was closely tracked and modified as needed to ensure that [REDACTED] was making meaningful progress. Among the many techniques and accommodations utilized for [REDACTED], include DTT, role play, FCT, token economy, positive reinforcement (e.g., praises, attention, access to favorable activity, and scheduled breaks), teaching replacement behavior, visual schedule, visual timer, scheduled breaks, behavior momentum, flexible thinking, DRI, social skills training as well as prompt hierarchy. Extinction and response block are utilized to decrease maladaptive behaviors. [REDACTED] practices behavior management strategies.

11. By virtue of being part of a class with a low student-to-teacher ratio, and where cutting-edge technology was deployed, the [REDACTED] Program provided [REDACTED] with a personalized program that was designed to support him in his areas of challenge and delay, and enabled him to make meaningful academic and functional progress. During the extended 2022-2023 school year, [REDACTED] made significant progress across all domains. He increased his ability to handle loud noises and no longer walks around wearing headphones. Additionally, he expanded his capability of maintaining joint attention for five-minute intervals. He has increased his math skills and made progress in his ability to stay dedicated to a task.

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was ”reasonable” as an appropriate placement for the student’s 2022-2023 school year.

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

There is nothing in the record that supports a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition and related cost at the private school for the time the student attended the private school during the 2022-2023 school year, minus the religious portion of the tuition in the amount of $5,000; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce an IEP for the student’s 2023-2024 school year; and it is further

ORDERED that the DOE shall conduct evaluations of the student in all areas of their suspected disabilities, not identified above and not evaluated within the last two years, for their 2022-2023 school year; and it is further

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

Sharifa Milena Nasser

DATED: July 31, 2023

Queens, New York Sharifa Milena Nasser - I.H.O.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)