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FINDINGS OF FACTS & DECISION
Case Number: 244344
NYS Identifier Number: 594222
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Dates(s) of Hearing: 03/14/23, 05/05/23, 06/12/23
& 06/22/23
Actual Record Close Date: September 12, 2023
Hearing Officer: Sharifa Milena Nasser
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[REDACTED] Parent PARENT 03/14/23 (V)
[REDACTED] Parent PARENT 05/05/23 (V)
[REDACTED] Attorney PARENT 06/12/23 (V)
[REDACTED] Attorney PARENT 06/12/23 (V)
[REDACTED] Parent PARENT 06/12/23 (V)
[REDACTED] Witness PARENT 06/12/23 (V)
[REDACTED] DOE Representative DOE 06/12/23 (V)
[REDACTED] Attorney PARENT 06/22/23 (V)
[REDACTED] Attorney PARENT 06/22/23 (V)
[REDACTED] Parent PARENT 06/22/23 (V)
[REDACTED] DOE Representative DOE 06/22/23 (V)
DOCUMENTATION ENTERED INTO RECORD
A. Number/Letter Title Dated For # of Pages Impartial Hearing Request 12/29/22 PARENT 04 pages
C. B Findings of Fact and 09/30/22 PARENT 14 Decision Ten-Day Notice Letter 08/22/22 PARENT 03 pages
D. Academic Progress 01/2023 PARENT Report 02 pages
E. Counseling Progress 12/22/22 PARENT Report 02 pages
F. English Midyear Academic 01/2023 PARENT 03 Report G History and Math 01/2023 PARENT 03 Academic Report
H. Report Card N/A PARENT 01 pages
I. Program Description for N/A PARENT [REDACTED] 03 pages
J. Enrollment Contract 08/25/22 PARENT 01 pages
K. Addendum to Enrollment 09/01/22 PARENT 01 Contract
L. Attendance Record '22/'23 PARENT 02 pages
M. Class Schedule ‘22/’23 PARENT 02 pages
N. Affidavit of Tuition 01/25/23 PARENT Payment 01 pages
O. Affidavit of Related 12/06/22 PARENT Services 01 pages
Q. P U.S. Individual Income 2021 PARENT 02 Tax Return Testimonial Affidavit of N/A PARENT 04 pages
[REDACTED]
R Testimonial Affidavit of 06/05/23 PARENT 06
[REDACTED]
S Testimonial Affidavit of 06/13/23 PARENT 04
[REDACTED]
On January 27, 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 20. The Parents filed a Due Process Complaint (“DPC”) on or about December 29, 2022. The Impartial was held on June 12, 2023 & June 22, 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 22, 2022 with their 10 day Notice letter and the District has not submitted any evidence to show that they responded to the Parent. (Parent’s Exhibit-C) At the impartial hearing, the Parent seeks the following relief:
• Tuition reimbursement and or funding for the student’s attendance at the private school for the 2022-2023 school year.
THE DOE’S CASE
The DOE did not call any witnesses to testify on its behalf and submitted no documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The Parent also submitted eleven (18) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.
DOES’ DEFAULT
The DOE failed to call any witnesses to testify on its behalf and submitted no documents in evidence.
The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE.
It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross 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], Principal at private school testified on direct via affidavit: The [REDACTED] special education program offers, self-contained special education classrooms that are hosted within main stream school sites. This provides the opportunity for [REDACTED] students to receive the small, full-time special education programming. They require for their academics while still allowing for mainstreaming opportunities as appropriate for each student. Every student at [REDACTED] program has an individually tailored program that addresses their unique special education needs. For the 2022 to 2023 school year, [REDACTED] classroom is a 7:1+1 ratio and all of the students in her class are within a two year range. Notably, some of [REDACTED] classmates also have individual paraprofessionals assigned to them and the ratio of the adults in the room is in fact higher than a 7:1+1, which allows [REDACTED] to receive more individualized attention and support throughout the day. All of the students in [REDACTED] class share a commonality of needs and similar academic and social emotional. [REDACTED] is an appropriate placement for [REDACTED] for the 2022 to 2023 school year because [REDACTED] is able to receive the small group and one to one instruction and support, she needs to make progress. Instruction and core subjects, such as reading, math, and writing are provided in both of one to ones and small group settings that provide her with continuous feedback, prompting and modeling. The school provides [REDACTED] with a very small, structured and safe environment, where she is able to feel less anxious, and which helped address her self esteem issues. She’s also provided with direct social skills, instruction, and a behavior plan to improve her social, emotional and behavioral delays. [REDACTED] has made significant progress, both academically and socially during the 2022-2023 school year. [REDACTED] is able to learn because she is in a structured program that met all of her needs. (Parent’s ExhibitR)
On cross examination the witness testified about the classrooms and the services and particular curriculum the student receives at the school. (T-33)
The witness also testified that there was a portion of the curriculum that was religious in nature and there is typically a paragraph that would detail that information. (T-35). However, it appears that the affidavit is devoid of such a breakdown detailing the religious portion of instruction.
The witness testified that the school determined that the student needed 1:1 counseling services but their services were incorporated into her curriculum. The speech and language and OT, we were able to provide the skills that she needed to the academic subjects. However, the counseling, we felt, was very important for her emotionally. (T27) 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. (D,E,F,G,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: and it is further ORDERED that the CSE shall forthwith reconvene and consider all of the student’s evaluations and any other relevant information and produce an IEP for the student’s 2023-2024 school year; and it is further ORDERED that 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: October 12, 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)