New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST

Case Number: 177987 & NYS Identifier Number N/A Student’s Name: - To be Edited and Removed by the NYC-DOE

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/01/18, 11/26/18, 05/01/19, 07/21/20

Actual Record Close Date: 12/07/20

Hearing Officer: Edgar De Leon

Case No. 179987 &

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 11/01/18 11/26/18 05/01/19 07/21/20 (T)

[CONFIDENTIAL] Attorney PARENT 11/01/18 11/26/18 05/01/19

[CONFIDENTIAL] Attorney PARENT 07/21/20 (T)

[CONFIDENTIAL] Mother PARENT 11/01/18

07/21/20 (T)

&

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

Exhibit Description Date Pages

A Due Process Complaint, 9/20/2018 23

B IEP 12/2/2016 21

C Due Process Complaint, Case No. 12/2/2018 21

D Subpoenas Undated 13

E IEP 10/30/2015 19

F IEP 9/20/2017 23

G Central Based Support Team Placement Notice 1/10/2017 t

H Neuropsychological Evaluation 7/25/2016 ies

I Middle/High School Occupational Therapy 11/09/2018 11

Evaluation of Function and Participation

J School Based Support Team Teacher Report 6/13/2016 3

K RSA — | Form Related Service Individual 1/18/2017 t

Authorization

L Student Progress Report 10/06/2016 3

M Level 1 Vocational Interview for 12/02/2016 3

Parent/Guardian

N Level 1 Vocational Interview-Student 12/2/2016 t

O CSE Records Request and FERPA Release 5/14/2018, 5

5/4/2018

P Records 5/14/2018, 5

Request and FERPA Release 5/4/2018

Q Request for Independent Evaluations with Fax 5/15/2018 2

Transmission Sheet

R Email from [Confidential] 1/87/2019 t

Ss Letter from 1/43/2017 t

T NYC DOE Commencement Credential 6/23/2018 1

U Email to [Confidential] 1/87/2019 t

V Letter from DOE Regarding Summer 6/5/2017 t

Occupational Therapy Services

W Letter from DOE Regarding Tutoring and 10/25/2017 T

Makeup Occupational Therapy Sessions xX Service Records 2011-2018 39

Y Notice to Admit Genuineness of Documents and 4/27/2019 2

Correctness of Photographs

Z Confidential Neuropsychological Assessment 4/02/2020 16

Report

AA _ | Neuropsychological Invoice 3/2020-4/2020 1 | BB | Closing Mem. | 8/20/2020. | 34 |

**“Parent’s exhibits D, E, F, G, H, J, K, L, M, N, O, P, R, S, U, V & W were not formally received in evidence***

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

Case No. 179987 &

On October 24, 2018, 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 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(_) year old student not attending school and the New York City - Department of Education (“DOE”) - District: , regarding the student's special education program. 1|was appointed after the recusal of at least one other IHO. The undersigned was appointed to Case # as a subsequent filing to NYC . Both cases were consolidated in an order that was issued on December 19 ,2018. 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 November 1, 2018, November 26, 2018, May 1, 2019 and July 21, 2020. The Parent submitted a written closing statement on August 21, 2020. (P-BB) A list of the persons who appeared via affidavits 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's attorney(s), [CONFIDENTIAL] on or about September 20, 2018, (NYC Case #179987 assigned) and December 2, 2018, (NYC Case # assigned). The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2016-2017, 2017-2018 and 2018-2019 school years. At the impartial hearing, the Parent request the following relief: (a) | Pendency/"Interim Orders” for “pendency pursuant to the student's December 2, 2016 IEP; and (b) “Interim Orders” for the following: a credit accounting, a Prior Written Notice and exit summary, full-time, 1:1 tutoring using a multisensory approach, speech and language services, psychological counseling, behavioral therapy as well as transportation, the DOE To turn over the student's records, a Psychiatric Evaluation not to exceed $3,000.00, An Assessment by a PhD-level Board Certified Behavior Analyst, a Neuropsychological Evaluation not to exceed $5,000.00, a Speech-Language Therapy Evaluation not to exceed $2,500.00, an Auditory Processing Evaluation, an Assistive Technology (“AT”) Evaluation; and (c) Extended eligibility for special education, compensatory education and services, a litany of “the DOE should” request; and (d) Attorney's fees; and (e) All other relief that may be appropriate.

On November 13, 2018, the parties agreed to the following “Order on Pendency” issued in this case:

ORDERED PURSUANT TO THE PARTIES’ AGREEMENT and

pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the placement and services approved in his IEP dated December 20, 2016 (P-B), the costs of which are to be paid by the DOE retroactive to date the Parent filed the instant DPC, upon the agency's receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED PURSUANT TO THE PARTIES AGREEMENT that a

copy of the student’s IEP dated December 2, 2016 (P-B) shall accompany this order for reference.

During an approximately (20) discussion held prior to the start of the hearing in the effort to get a handle on the case, and the nebulous nature of the relief sought by the Parent, and the Parent's witness, a neuropsychological psychologist that was supposed to give testimony, was on the line all the time, without having yet been called as a witness and without giving notice to the DOE and the undersigned IHO, listening to our entire conversation, which compromised the integrity of the witness’s testimony. (T49)

The DOE stated that in a writing from the case manager, the Parent did not pursue placing the student in a nonpublic school, the student did not get decertified in 2018, but instead got discharged because she did fulfill the requirements for a “CDOS” and was entitled to stay in school as a special education student until she is 21. (T-51)

The DOE proffered that the student has graduated. (T-52-3)

The Parent stated that regarding her request for compensatory services, there are a number of things that she is not going to be able to provide, like transitional vocational services, until the student is evaluated. (T-56) The Parent further stated that the student recently had a Neuropsychological evaluation. (T-61) The DOE stated that it had done a vocational assessment, although admittedly not in great detail, but it would not agree to an independent transitional vocational assessment. (Id.) The DOE agreed that the Parent's request for the independent evaluation, came after the DOE’s vocational evaluation was done and did not object to the Parent's receipt of the independent evaluation. (T-62-3) The DOE does not dispute the student's need or request for an independent vocational evaluation. (T-65)

The undersigned proposed an order stating that the student is entitled to services until June of 2021, that the student should receive an independent vocational evaluation, and that upon receipt of the results of that evaluation, the student remains free to make a request, if supported by that evaluation, the student can request compensatory services on that basis, which if the DOE does not agree to those compensatory services, the student is not barred from filing a due process complaint because the student is still entitled to special education services until June of 2021. (T 65-6)

The DOE conceded that the student is currently on a 1st to 2nd grade level, and intellectually, she is in the “ID” range and that a reasonable amount of compensatory services hours should be offered, commensurate with the student's abilities. (T-80)

FINAL ORDER - DOE’S DEFAULT

The Parents’ DPC having been duly filed 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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for an “impartial hearing” before this IHO on June 15, 2020, and which time the DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence (T-49-51 & 73-4) and this decision/order made on submission of oral arguments and documentary evidence; and The Parent having appeared with her attorney(s), [CONFIDENTIAL], attorney [CONFIDENTIAL] assigned and having not provided testimony via affidavit pursuant to 8 NYCRR 200.5j]j][3][xii][f]; and An inquest regarding the Parent’s damages and the relief she seeks having been conducted, and this “Final Order” based upon her documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; and Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law (Supra); and Whereas the DOE failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) and T-5-6); and Whereas “Prior Written Notice’ meaning 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; and Whereas silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4" 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) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer ( “IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04

061); and Whereas an IHO may require the parties to be present at the impartial hearing.

(8 NYCRR 200.5(j)(3)(xiii) and an IHO’s order to the Parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073); and Whereas 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]); and Whereas here, the DOE did not proffer any evidence that it has offered the student a FAPE, this amounting to a tacit concession that the agency did not offer the student a FAPE (Id.); and Whereas although 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; and Whereas 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 law 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 (1*' 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); and Whereas the DOE did not present a case-in-chief and made no substantive effort to controvert the documentary evidence submitted by the Parent and the credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined; and Whereas I find the documentary evidence submitted by the Parent in this case to be credible, completely uncontroverted and conclusive in this case; and Whereas 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 the Parent is entitled to the relief she seeks and 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 aFAPE. (SRO No. 17-033); and Whereas 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’"]); and Whereas when, as here, the DOE does not present any case at the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because 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]; and Whereas 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 and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and Whereas when turning 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); and Whereas 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); and Whereas 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); and Whereas 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); and Whereas the 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) and 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"]]); and Whereas there is a request for compensatory educational services in this case and 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]); and Whereas 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]); and Whereas 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]); and Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and Whereas the DOE did not initiate this impartial hearing (DPC); and Whereas to demonstrate the appropriateness of the relief sought, 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 the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and Whereas there being nothing in the record consisting solely of the Parent’s uncontroverted testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and Whereas the student's Neuropsychological Evaluation dated March/April of 2020 recommends that the student receive the following compensatory services: speech-language therapy (5x60x1), counseling-social skills (2x60x1, 3x60x3), and occupational therapy (5x60x1), both as part of program and as make-up, (5x60 in literacy (reading/writing), and 5x60 in math), (5) hours per week with a 1:1 job coach, including assessing her vocational abilities and interests, (5-10) hours per week transitional/adaptive coaching to help her with career planning and as she has not yet learned how to navigate the New York City Transition system independently, she will require training supports to enable her to commute; (P-AA); and Whereas the DOE having waived its right to contest the Parent’s documentary evidence; and Whereas the Parent's documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and

INDEPENDENT EDUCATIONAL EVALUATION - “IEE”

Whereas if the Parent request an evaluation or disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an IEE at public expense.

(See Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”); and Whereas if the Parent request an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(See 8 NYCRR § 200.5(g)(iv); and Whereas, the statute as written contemplates that the school district will be given notice of the Parent’s request for an evaluation or disagreement with the school district’s evaluation so that it may invoke its right to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and Whereas additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense; and Whereas the DOE does not dispute that the student should receive an independent transitional evaluation (T-62-3); and Whereas, accordingly, I find that the Parent is entitled to the evaluation requested, consisting of an independent transitional evaluation, and I will also exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and

REQUEST FOR COMPENSATORY SERVICES

Whereas the Parent has submitted in evidence, completely uncontroverted evaluative evidence and uncontroverted testamentary evidence which supports the Parent’s request for compensatory services in this case (T-5-9, P-F, P-l & P-J); and Whereas the DOE failed to appear at the hearing and defaulted on its statutory obligations, and said default constitutes a tacit concession that the student was denied a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years (T-5-9); and Whereas a gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO No. 02-047); and Whereas in Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”; and Whereas in the instant case, the student has been denied a FAPE for three consecutive school years, and as such, I find that the denial of FAPE in this case constitutes a gross violation of IDEA, which along with the uncontroverted testamentary and documentary evidence submitted by the Parent justifies an award of compensatory education services on behalf of the Parent; and Whereas the student Neuropsychological evaluation is through, uncontroverted and recommends the student received compensatory services, | undersigned herein awards those services as specified above: and

SPECIAL TRANSPORTATION SERVICES

Whereas the IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[al], [c][16]); and Whereas in addition, State law defines special education as “specially designed instruction .. . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]); and Whereas specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053); and Whereas if a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]); and Whereas the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]); and Whereas other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]); and Whereas when reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054); and Whereas in this case, the student's neuropsychological evaluation is through, uncontroverted and recommends that the student receive transportation service there are herewith ordered herein; and Whereas there is no evidence in the hearing record as to how the student was transported to and from school each day during the relevant school years does not in the opinion of the undersigned vitiate the uncontroverted recommendation for transportation services in the student’ Neuropsychological Evaluation; and Whereas accordingly, the hearing record supports a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation; and Whereas however, this does not vitiate or constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402/4][[d]); and Whereas if the DOE has not done so already, it must provide transportation of the student to her compensatory services in accordance with the above; and Whereas the DOE’s default constitutes a concession of a denial of FAPE and the uncontroverted documentary evidence submitted by the Parent and annexed hereto supports the Parent's request for relief as detailed below.

Now, therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of special education services until June of 2021, an _ independent transitional/vocational evaluation at a rate not to exceed the reasonable and fair market rate cost for such an evaluation in New York City, and that upon receipt of the results of that evaluation, the Parent remains free to make a request, if supported by that evaluation for compensatory services on that basis, which if the DOE does not agree to those compensatory services, the Parent is not barred from filing a due process complaint because the student is still entitled to special education services until June of 2021 (T-65-6), speech-language therapy (5x60x1), counseling-social skills (2x60x1, 3x60x3), and occupational therapy (5x60x1), both as part of program and as make-up, (5x60 in literacy (reading/writing), and 5x60 in math), (5) hours per week with a 1:1 job coach, including assessing her vocational abilities and interests, (7.5) hours per week transitional/adaptive coaching to help her with career planning and as she has not yet learned how to navigate the New York City Transition system independently, she will require training supports to enable her to commute, all of these related services to be provide up until June of 2021 at a rate not to exceed the reasonable and fair market rate cost for such related services in New York City(P-AA); and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall conduct evaluations of the student in all areas of her suspected disabilities, not identified above and not evaluated within the last two years, for her 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student's available evaluations and any related information and produce a new IEP for the student’s 2021

2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this “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.

DATED: December 13, 2020

New York, New York Edgar De Leon - IHO

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)