New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 244557

NYS Identifier Number N/A Student's Name: REDACTED Date of Birth: ["Confidential"]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 05/23/23 & 07/13/23

Actual Record Close Date: 07/24/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

"No Appearance" N/A DOE 05/23/23 (V)

[CONFIDENTIAL] DOE Representative DOE 07/13/23 (V)

[CONFIDENTIAL] Advocate PARENT 05/23/23 (V) 07/13/23 (V)

{CONFIDENTIAL] Advocate PARENT 07/13/23 (V)

[CONFIDENTIAL] Mother PARENT 07/13/23 (V)

[CONFIDENTIAL] Admin. Private School PARENT 07/13/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT EXHIBITS

A. Impartial Hearing Request 01/04/23 5 pages

B. Program Description 7 pages

E. C Remote Learning Information 5 D [NAME] Academy 2 Ten Day Notice 06/17/21 2 pages

F. Summer Remote Schedule 21/22 1 page

G. Class Schedule 21/22 1 page

H. Semester 1 Progress Report 21/22 21 pages

I. Semester 2 Progress Report 21/22 25 pages

J. Academic Content Skills 21/22 5 pages

K. School Letter 21/22 1 page

L. Tuition Affidavit 07/22/21 1 page

M. Tuition Contract 04/28/21 3 pages

N. Summer Attendance 21/22 1 page

O. Attendance Record 21/22 1 page

P. Affidavit of Testimony 11 pages

Q. Parent Affidavit of Testimony 2 pages

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

On February 1, 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 (14) year old student attending a private school and the New York City - Department of Education ("DOE") - District: 02, regarding the student's special education program. 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 May 23, 2023 (the NYC-DOE failed to appear - T-4-9) and July 13, 2023. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint ("DPC") filed by the student's Parent through her advocate(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office ("DOE-IHO") on or about January 4, 2023. The DPC is carried under New York City ("NYC") Case No. 244557. Therein, the Parent alleges that the DOE has failed to provide the student with a "free and appropriate public education" ("FAPE") for the 2021-2022 school year. At the impartial hearing, the Parent seeks the following relief: (a) Reimbursement for the tuition costs associated with the student's placement at the private school for the 2021-2022 school year and/or direct payment to the private school for these tuition costs; and (b) That the NYC-DOE provide the student with the related services recommended on the last agreed upon IEP and/or directly pay the private school for the cost of the student's mandated related services; and (c) That the NYC-DOE provide the student with extended school year and/or twelve-month services; and (d) That the NYC-DOE provide the student with school bus transportation to and from the private school and reimburse the Parent and/or the school for any out-of-pocket transportation expenses for this school year.

(e) Any further relief as the IHO deems just and proper.

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-20, 23 & 29) 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-L, P-P & P-Q) The DOE only cross examined two of the Parent's affiants. (T-36-42, 49-57, P-Q & P-P) The Parent also submitted (17) documents in evidence. The DOE did not object to the Parent's documents being received in evidence. (T-25-8) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

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

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

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

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

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

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

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

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

THE DOE'S DEFAULT

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer and did not serve a "Prior Written Notice" in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-20, 23 & 29) "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 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. As previously noted, the DOE did not serve and file an answer in the case but did serve the Parent with "Prior Written Notice," which provides 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])

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 testamentary or documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and 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]. 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 2019-2020 school year and that the Parent may be entitled to the proven relief he has requested.

APPROPRIATENESS OF RELIEF SOUGHT

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

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient "insight about the precise types of education services the student needs to progress." (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student's unique needs should include the nature and severity of the student's disability, the student's specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of "propos[ing] a well-articulated plan that reflects the student's current education abilities and needs and is supported by the record." (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ("Nesbitt II"), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

"We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed." (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58- 62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the amount of "damages." (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE's default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following:

The Parent's first witness is the student's mother. (P-Q) She testified on direct examination as follows: 4. He received early intervention services when he was two years old and attended the REDACTED 8. For the 2021-2022 school year I enrolled my son in the [NAME] School and requested a hearing to obtain tuition. The Department of Education settled the case and the [NAME] School was paid. 9. For the 2021-2022 school year I continued my son's enrollment at [NAME] because he made progress during his first year. 14. I signed a contract with the school, and I owe them the full tuition amount if I do not prevail at this hearing. 15. I did not pay any money to the school because our family income is too low to allow us to pay for the school. 16. If I do not prevail at this hearing, I must pay the school the contracted annual tuition for the entire 2021-2022 school year. 17. I believe that my son's IEP for the year in question is not appropriate for many reasons. The goals do not reflect his functioning and the methods of measurement are not realistic for him. The management needs section of his IEP for the year in question was not amended to address his newly emerging skills. (P-Q)

On cross examination the witness testified that the student is in a 12:2:1 class setting in the private school. (T-36-7) At the DOE school that student would be with a lot lower functioning students than him. (T-37-8) The student used to receive "SEIT" services that were discontinued although she kept requesting to keep the services. (T39) The student has been attending the private school for two years. (T-40-1) There was no -re-direct examination of the witness. (T-42)

The Parent's second witness is the private school administrator. (P-P) She testified on direct examination as follows:

1. I am the Assistant Head of School for the Middle School at the [PRIVATE SCHOOL NAME] School and Institute ([PRIVATE SCHOOL NAME]). [PRIVATE SCHOOL NAME] is a non-profit independent school for students who have disabilities from kindergarten through age 21. [PRIVATE SCHOOL NAME] is accredited by the New York State Association of Independent Schools.

5. [PRIVATE SCHOOL NAME] is an independent school for students who have a broad range of developmental and cognitive disabilities. Our students have a variety of disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills.

7. Our students are exposed to very diverse content, enrichment classes including humanities, math, science, life and social skills, Mind Body Move, yoga, music, and art therapy, as well as project-based learning that connects core content skill development with real world experiences.

8. In general, we provide small classes with high student-to-teacher ratios.

We also provide intensive occupational therapy, speech and language therapy, physical therapy, counseling, and a Mind Body Move class designed by the Chair of our Physical Therapy department. As Assistant Head of School, I work closely with this team of highly trained related service professionals involved with the students.

12. It is my understanding that a detailed program description has been disclosed and entered as Parents' Exhibit B. This description explains [PRIVATE SCHOOL NAME]'s mission and the objectives of the Middle School, including the skills areas addressed at [PRIVATE SCHOOL NAME], and the instructional strategies utilized. I am familiar with this document, and I can attest that it is an accurate program description.

15. The Middle School program provides small class sizes with a high student-to-teacher ratio. During the 2021-2022 school year, there were approximately 305 students at the [PRIVATE SCHOOL NAME] School and Institute, ranging in age from 5 to 21-years-old.

16. Approximately 60 students were enrolled in [PRIVATE SCHOOL NAME]'s Middle School throughout the 2021-2022 school year, aged 11 through 14. Our Middle School students were grouped into five cohorts, for grades 6, 7, and 8. Each cohort includes a maximum of twelve students, joined by one Head Teacher, an Assistant Teacher and two Paraprofessionals.

18. [PRIVATE SCHOOL NAME]'s Head Teachers are certified by New York State and/or have a Master's degree or are in the process of completing a master's degree. Assistant Teachers have a Bachelor's degree and many are in the process of obtaining Master's degrees. Our paraprofessionals are required to have a high school diploma and they receive professional development and training at [PRIVATE SCHOOL NAME] to help them develop their skills in the classroom.

19. All school psychologists, occupational, physical and speech therapists working at [PRIVATE SCHOOL NAME] are required to be licensed and certified by the New York State Education Department (NYSED). They are provided with opportunities for and have undergone professional development and training in their respective fields, as more fully set forth below. All related service providers have at least a Master's degree in their field. The school's curriculum also includes art therapy and music therapy, as noted prior.

23. Teachers and providers report on student goals twice annually in progress reports. At [PRIVATE SCHOOL NAME], we assess student progress in reading and math using a variety of informal and formal assessments, including Fountas and Pinnell Benchmark Assessment Systems and STAR 360 online assessments in reading and math (Renaissance STAR assessments are computer-adaptive tests for preK-12 students that measure reading, math, and early literacy skills).

24. Most students travel to and from school by bus service that is provided by the DOE Office of Pupil Transportation and for which, I believe, the DOE is solely responsible to provide to [PRIVATE SCHOOL NAME] students.

25. I am familiar with the student, [STUDENT INITIALS], as he was a student in [PRIVATE SCHOOL NAME]'s Middle School for the 2021-2022 school year. During that time, I observed [STUDENT INITIALS] throughout the day during arrival, class time, lunch/recess, and dismissal. I would regularly meet with his teachers and service providers and discuss [STUDENT INITIALS]'s progress during our weekly cohort meetings and Middle School team meetings. Additionally, if any specific concerns arose regarding [STUDENT INITIALS] I was looped in by his team of providers on an as-needed basis.

26. [STUDENT INITIALS] was a REDACTED year-old 7th grader in our Middle School cohort. It is important to note that the Department of Health's classroom restrictions shifted during the 21-22 SY, and as such [STUDENT INITIALS]'s classroom groupings changed from Semester I to II, as he was no longer restricted to a learning pod, so to speak. For Semester one, there were 7 students in [STUDENT INITIALS]'s cohort. In addition, [STUDENT INITIALS]'s Middle School classes were divided into 5 cohorts with no more than 12 students in each cohort for Semester two. For him that Semester, [STUDENT INITIALS] was primarily in a class with 12 students, a Head Teacher, an Assistant Teacher, and two Paraprofessionals.

27. [STUDENT INITIALS] also participated in the Mind Body Move class I referenced earlier, which is cotaught by the physical therapist and the occupational therapist in a small group of students, where [STUDENT INITIALS] worked on his gross motor, visual motor, and problem-solving skills, and reinforces the skills he is addressing in his occupational therapy sessions.

46. For these reasons, I strongly believe that the [PRIVATE SCHOOL NAME] School was an appropriate placement for [STUDENT INITIALS]'s 2021-2022 school year. Our team of educators, as well as therapists and related service providers, work so closely together that we were able to be on the same page about how to support [STUDENT INITIALS] in all domains - social/emotional, academic, adaptively, and helped her to generalize these skills, using the same language, methods, and techniques, whether he was in humanities, yoga or speech therapy, etc. (P-P)

On cross examination, the witness testified that she has never taught the student in question. (T-49) She has observed the student both formally and informally. (T-50)

When asked where her knowledge of the student comes from, the witness answered:

Some of it is from -- it comes from multiple sources. So progress reports, my own observations, cohort meetings where we discuss students, middle school team meetings where we discuss students, and learning profiles where teachers make notes about students. (Id.)

The witness testified that students at the private school are comprised of 6th, 7th, and 8th grade students, and they are grouped by academic levels, social skills, and adaptive skills. (T-51) Evaluations or assessments were used prior to placing the student into the cohort he was in, including formal assessments for ELA and math, Fountas & Pinnell and STAR 360. (T-52) There were (12) students in a class. (T-54) They do small group instruction within that group of (12), so if a student needs a smaller group or one-to-one instruction, they are able to do that within the 12-student cohort. (T-55) They do not put the grade equivalency on the progress reports. (T-56) During the 2021-2022 school year, the student received counseling, speech, and occupational therapy, and although she does not believe he received PT, all the students participate in a class called Mind Body Move, which is co-led by the OT and PT. (T-57)

First, it is again important to note that the DOE has defaulted on its statutory obligation in this case and that there is nothing in the record to indicate that the Parent has not cooperated with the agency. Accordingly, the only issue to be decided herein is the appropriateness of the relief sought by the Parent. The Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The DOE's default is a tacit concession that the student was denied a FAPE for the 2021-2022 school year. (Supra) Additionally, the testamentary and documentary evidence summarized above and received in evidence is completely uncontroverted and clearly indicates that the private school was an appropriate placement under the law for the student for the 2021-2023 school year, in that it is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., Gagliardo, and Berger, supra) It is unfortunate that the NYC-DOE forced the Parent to take this matter to a hearing and then did not present a case or make any substantive effort to challenge the Parent's assertion of the appropriateness of the private school. This case stands as another example of the systemic problem of the NYC-DOE meeting its stator obligations in these cases.

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 NYC-DOE denied the student a FAPE for the 2021-2022 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the NYC-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 2021-2022, including his related services and transportation service school year thereat, the cost of which, absent the student's tuition which is to be paid on a dollar for dollar owed basis, the reasonable and fair market rate for such services in New York City; 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, It's CONCESSION 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, It's CONCESSION 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: August 1, 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)