New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 181828

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 09/17/19

Actual Record Close Date: 03/23/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date

DOE Representative DOE 09/17/19

Advocate PARENT 09/17/19

Mother PARENT 09/17/19

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date

DOE Representative DOE 09/17/19

Advocate PARENT 09/17/19

Mother PARENT 09/17/19

On February 5, 2019, 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), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (_) year old pre-school student attending a private school and the New York City Department of Education (“DOE”) - District: _, regarding the student's special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the pendency and impartial hearing was held on September 17, 2019. A list of the witnesses who appeared at the hearing and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

made by the student's Parent through her advocate(s), the Educational Advocacy Service and received at the Department of Education Impartial Hearing Office (“DOEIHO”) on or about February 25, 2019. The DPC is carried under New York City (“NYC”)

Case No. 181828. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education’ (“FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent seeks the following relief: (a) A recommendation of twenty hours of SETSS services for sixty-minute sessions; and (b) An order that the DOE pay the student's SETSS providers at a rate not to exceed $150 per period of service; and (c) |Arecommendation for extended school year services.

The Parent in this also requested an “Order on Pendency.” A pendency hearing held during a resolution period does not commence the impartial hearing timeline. (See

NYSED Memo - Questions Relating to Impartial Hearing Procedure, Sept. 2016) As such, a hearing to discuss and determine the pendency placement of the student may occur during a resolution period but such a hearing held at that time does not commence the impartial hearing itself until the resolution period has expired. (Id.)

However, an impartial hearing may commence with a “pendency hearing’ if it is the first hearing to take place within 14 days of (a) or (b) of section 200.5(j)(3)(ili) of the regulations, i.e., after the resolution period has expired. (ld.)

THE PARENT’S PENDENCY REQUEST

The Parent request an “Order on Pendency” based upon the student’ IESP dated May 13, 2015. (T-5-7 & P-B)

THE DOE’S ARGUMENT AGAINST PENDENCY

The DOE noted there have been decisions and agreements in the interim that supersede that IESP. (T-7-8)

ORDER ON PENDENCY

Pendency is based on the student's “then-current educational placement,” which the Second Circuit has defined as “(1) ‘typically the placement described in the child's most recently implemented IEP,’ (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) ‘the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked,’ (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) ‘[the placement at the time of] the previously implemented IEP,’ (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004])

The then-current educational placement can be superseded by an agreement between the parties during the proceedings to change the student's placement or a final, Uunappealed decision on the merits by an impartial hearing officer, state review officer, or court. SRO Appeal No. 05-011; see also Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Student

Xv. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) It was agreed that regarding the last decision that was rendered in any dispute between the Parent and the DOE and agreements as to what services the student was to receive, which would have been the services that the student was actually receiving, the Parent may submit any documentation in that regard via email to determine pendency. (T-10) The DOE agreed not to object to any such filing. (Id.) No such filing was ever received from the Parent.

THE DOE’S CASE ON THE MERITS

The DOE argues that it created an IESP where most of the services that the Parent is seeking were recommended, except for the (15) hours of SETSS as opposed to (20) that the Parent is seeking. (T-11) The DOE did not object to any of the Parent’s documentary submissions. (T-16) The DOE also did not cross examine the Parent's witnesses that testified via affidavit. (T-17-8) Finally, the DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-21)

The testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE ON THE MERITS

The Parent argues that from the IEP which recommended (20) hours to the IEP that recommended (15), there was really no significant change in the student's needs and functioning in a school setting. (T-19)

The Parent called (5) witnesses to testify on her behalf who submitted his direct testimony via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f]. (P-C, P-D, P-E, P-F & PG)) The DOE did not cross examine the affiants. (T-17-8) The Parent testified live on her behalf and submitted (8) documents in evidence. The testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE 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 [2"° Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° 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 did not call any witnesses to testify on its behalf, did not submit any documents in evidence and 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) & T-16-18 & 21) “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, 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])

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 evidence that it has offered the student a FAPE and actually conceded a denial of FAPE for the student’s 2018-2019 school year. (Supra) This is 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, nor did the agency serve the Parent with “Prior Written Notice”, which would provide 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 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)

However, here 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 the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary 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 and that the Parent may be entitled to the proven relief she has requested.

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])

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, Ill, 2) (See_Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

The first witness for the Parent testified on direct examination via affidavit. In sum, substance and relevant part, the Parent testified that the student suffers from . (T-24) At the beginning of the 2018-2019 school year, the student was receiving (20) hours of SETSS services. (T-25-6) The student requires the services of a professional to help him with his cognitive delays and his developmental delays, but he does not need a special ed environment because he is able to function in a regular ed school or with the help. (T-27) Due to the hydrocephalus on his brain, the student has a very hard time focusing in class. (Id.) The student wears AFO braces that come up to about the knee and they hold his feet into place because he has paralysis in different parts of his body from his waist down. (T-30) The student also uses a catheter to go to the bathroom. (Id.)

The witness testified that the student does not use “ABA” because he is not on the spectrum. (T-34) For the 2018-2019 school year, the student was in a class with (28) students’ (T-36) For the 2018-2019 school year, the student’s providers were requesting $150 per hour. (T-38)

On cross examination, the witness agreed that the student should be more independent. (T-44) The student's supports should not be cut abruptly. (T-46) Once an evaluation states that the student’s services should be cut, she would agree. (T-47)

She believes that it is too premature to cut the student's services. (T-48) There was no substantive testimony developed during the witness’ re-direct examination. (T-49-51)

On re-cross examination, the witness testified that the student is now in the 3% grade.

(T-52) He is not on grade level in reading or in math, but she cannot say what grade level the student is actually on. (T-53-5)

During voir dire, the witness testified that she did not know when the student had last been evaluated. (T-56-7) The student’s providers are independent providers whom she does not have a contract with and whom she has not paid for their services. (T-57-8)

The student’s SETSS providers all gave almost identical testimony via affidavit, indicating that they had provided SETSS services to the student for the 2018-2019 school year at a rate of $150 per hour and indicating how much if anything they had been paid, and what they asserted was still owed them for their services. (P-C, P-D, P-E, P-F & P-G)

There is no evaluative basis in evidence supporting the DOE’s cut in SETSS services from (20) to (15) hours in this case. 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. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5|j|[5][v]) There is no evidentiary basis in the record supporting the cut in services. Accordingly, I find that the student should have received (20) hours of SETSS services per week for the 2018-2019 school year.

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. A reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d]) State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to a student with a disability,” from "indirect consultant teacher services,” which consist of "consultation provided by a certified special education teacher . . .to regular education teachers” (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6[d]).

There is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate. The Parent testified that the student’s providers are independent providers whom she does not have a contract with and whom she has not paid for their services. (T-57-8) The record does not indicate that the Parent made a specific enforceable arrangement or otherwise enter into an enforceable contract or an actual enforceable agreement” with the providers to pay the providers if the impartial hearing process did not result in an award of the enhanced rate. Therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the providers were owed additional compensation based on an enforceable agreement with the Parent or the DOE. In any event, it is unnecessary to speculate on this state of affairs since the evidence in the hearing record does not support a finding that the DOE failed to make available to the student special education programs and services on an equitable basis. (See Educ. Law § 3602-c[2][b][1])

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. For all of the reasons stated herein, the undersigned finds that the relief sought by the Parent, to the extent indicated below, is appropriate

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the student was entitled to receive (20) hours per week of SETSS services for the 2018-2019 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 the independent providers for the cost of the student’s receipt of (20) hours per week of SETSS services, for the entirety of the student’s 2018-2019, at the DOE rate; 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 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT 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 2020-2021 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 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: March 30, 2020

New York, New York Edgar De Leon - |.H.O.

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

A IHR 02/25/19 PARENT 04

B IESP 05/13/15 PARENT 16

C Affidavit of Provider 08/04/19 PARENT 01

D Affidavit of Provider 08/06/19 PARENT 01

E Affidavit of Provider 08/07/19 PARENT 01

F Affidavit of Provider 08/05/19 PARENT 01

G Affidavit of Provider 08/09/19 PARENT 01

H Provider Certificates undated PARENT (?)

I-J Withdrawn / Not Received N/A PARENT N/A

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